Eva Stern 45, LLC v Punnett

[*1] Eva Stern 45, LLC v Punnett 2015 NY Slip Op 50672(U) Decided on May 1, 2015 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 1, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-926 K C

Eva Stern 45, LLC, Appellant,

against

Carlos Punnett, Respondent, -and- CONNIE RAMOS, Defendant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order granted defendant Carlos Punnett's motion to vacate so much of a default judgment as was entered against him.

ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant Carlos Punnett's motion to vacate so much of the default judgment as was entered against him.

In this action to recover the principal sum of $7,140 for rent arrears and attorney's fees, neither defendant appeared or answered. The Civil Court entered a default judgment dated November 8, 1999 awarding plaintiff the total sum of $6,288.76 as against both defendants. Thereafter, Carlos Punnett (defendant) moved to vacate the default judgment insofar as entered against him, asserting that service, pursuant to CPLR 308 (2), to a person of suitable age and discretion allegedly at defendant's dwelling house or usual place of abode, had been made at the wrong address, as defendant had not resided there at any time. In an order entered March 15, 2012, the Civil Court granted defendant's motion.

Where a defendant asserts a lack of personal jurisdiction as the ground for vacating a default judgment, the defendant need not demonstrate a reasonable excuse for the default or a meritorious defense (see European Am. Bank & Trust Co. v Serota, 242 AD2d 363, 363-364 [1997]; Laurenzano v Laurenzano, 222 AD2d 560 [1995]). A process server's affidavit of service generally constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074 [2010]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]). However, where, as here, there is a sworn denial of receipt of process because service pursuant to CPLR 308 (2) was made at an address where the defendant claims to have never resided, the affidavit of service is rebutted, and a hearing must be held, at which the plaintiff has the burden of establishing jurisdiction by a preponderance of the evidence (see Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d [*2]343, 344 [2003]). Plaintiff's remaining contentions are without merit.

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant Carlos Punnett's motion to vacate so much of the default judgment as was entered against him.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: May 01, 2015