Congregation Abath Achim v Radsminsky

[*1] Congregation Abath Achim v Radsminsky 2010 NY Slip Op 50448(U) [26 Misc 3d 145(A)] Decided on March 10, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 10, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2009-157 K C.

Congregation Abath Achim, Respondent,

against

Joseph Radsminsky, Appellant, -and- "JOHN DOE" and "JANE DOE," Undertenants.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered December 22, 2008. The order denied Joseph Radsminsky's motion to vacate a default final judgment.

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 Joseph Radsminsky's motion to vacate the default final judgment.

In this summary proceeding pursuant to RPAPL 713 (10), a default final judgment was entered and a warrant of eviction issued. Joseph Radsminsky moved to vacate the default final judgment and warrant of eviction, alleging, among other things, that, contrary to the allegations in the affidavit of service, he had never received a copy of the notice of petition and petition and no one had come to personally deliver a copy of the notice of petition and petition to him at the place and time alleged in that affidavit. Appellant's sworn denial of service was sufficient to raise an issue of fact with respect to the service of process so as to require a traverse hearing (see Cadin Contr. v Rich Agency, 158 AD2d 442 [1990]; Severn Trent Water Purification, Inc. v C & C Duplicators, Inc., 11 Misc 3d 128[A], 2006 NY Slip Op 50248[U] [App Term, 9th & 10th Jud Dists 2006]). Accordingly, the order denying appellant's motion to vacate the default final judgment is reversed and the matter is remitted to the Civil Court for a new determination of appellant's motion following a traverse hearing.

Pesce, P.J., and Steinhardt, J., concur.

Weston, J., dissents in a separate memorandum. [*2]

Weston, J., dissents and votes to affirm the order in the following memorandum:

This is a motion to vacate a default judgment. The affidavit of petitioner's process server attests that the notice of petition and petition were served upon Joseph Radsminsky personally and fully explains that "the individual served first responded to the name of JOSEPH RADSMINSKY, but immediately denied being that individual when served with legal process." The detailed affidavit constituted prima facie evidence
of proper service (see Parker v Top Homes, Inc., 58 AD3d 817 [2009]; Francis v Francis, 48 AD3d 512 [2008]) and, in order to rebut this showing, appellant had to submit a sworn, nonconclusory denial of service (see NYCTL 1998-1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459 [2004]). Appellant's statements that "[m]y attorney tells me that this is one of the most bizarre cases she ever met" and "[t]hat I have never been served in this proceedings [sic] . . .," without more, are self-serving and insufficient to warrant a hearing on the issue of whether personal service was effected (see Roberts v Anka, 45 AD3d 752 [2007] [process server's affidavit indicated that the defendant was served by substituted service upon a female at her residence; the defendant's general denial of receipt of a copy of the summons and complaint, and claim that there was no female relative at her home were deemed conclusory and insufficient; the defendant failed to submit an affidavit from any female relatives denying receipt of the papers]). Accordingly, the motion was properly denied.
Decision Date: March 10, 2010