Zot, LLC v Moore

[*1] ? 2014 NY Slip Op 50883(U) Decided on May 22, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and SOLOMON, JJ.
2012-1500 K C

Zot, LLC, Respondent,

against

Joshua Moore, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 24, 2012, and an order of the same court (Reginald A. Boddie, J.) dated May 1, 2012. The order entered February 24, 2012, insofar as appealed from as limited by the brief, upon granting the branches of plaintiff's motion seeking to open plaintiff's default in appearing on the return date of defendant's prior motion to vacate a prior order of the same court (Pamela L. Fisher, J.) dated February 1, 2012, which had vacated a default judgment entered April 21, 2011 in favor of plaintiff, and to vacate the February 1, 2012 order, granted the branches of plaintiff's motion seeking to deny defendant's motion to vacate the default judgment and to reinstate the default judgment. The order dated May 1, 2012 denied defendant's application for an order to show cause seeking to vacate the default judgment. The

appeal was transferred to this court nunc pro tunc by decision and order on motion of the Appellate Division, Second Department, dated March 27, 2014.

ORDERED that the order entered February 24, 2012, insofar as appealed from, is reversed, without costs, so much of the order as, upon opening plaintiff's default and vacating the February 1, 2012 order, granted the branches of plaintiff's motion seeking to deny defendant's prior motion to vacate the default judgment and to reinstate the default judgment is vacated, and the matter is remitted to the Civil Court for a new determination of those branches of plaintiff's motion following a hearing, in accordance with the decision herein; and it is further,

ORDERED that the appeal from the order dated May 1, 2012 is dismissed, as no appeal lies from a refusal to sign an order to show cause (see CCA 1702 [a] [2]; Matter of Allah v Scheinman, 61 NY2d 755 [1984]; Khanal v Sheldon, 74 AD3d 894 [2010]; Gache v Town/Village of Harrison, 251 AD2d 624 [1998]).

In this action to recover the principal sum of $6,840.78 for breach of a lease, defendant failed to appear or answer. On April 21, 2011, the Civil Court entered a default judgment awarding plaintiff the total sum of $7,801.54. Thereafter, defendant moved to vacate the default judgment, asserting that service had been made at the wrong address. By order dated February 1, 2012, the Civil Court (Pamela L. Fisher, J.) granted defendant's motion on plaintiff's failure to appear on the return date thereof. By order dated February 24, 2012, the court (Carol Ruth Feinman, J.) granted plaintiff's motion to open its default in appearing on the return date of defendant's prior motion and, upon opening plaintiff's default, to vacate the February 1, 2012 order, deny defendant's motion to vacate the default judgment and to reinstate the default judgment. Defendant appeals, as limited by his brief, from so much of the order as, upon [*2]opening plaintiff's default and vacating the February 1, 2012 order, granted the branches of plaintiff's motion seeking to deny defendant's motion to vacate the default judgment and to reinstate the default judgment. Defendant contends that the Civil Court erred, as plaintiff had served process at a former residence of defendant, from which defendant had moved approximately one year earlier.

Where a defendant asserts a lack of personal jurisdiction as the ground for vacating his default, 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 ordinarily 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 there is a sworn denial of receipt of process because service was made at a previous address, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing (see Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]). Here, in support of his motion, defendant submitted an affidavit in which he stated that he had not been served with the summons and complaint, as service had been made at his previous address on January 21, 2011, which address he had vacated a year earlier. If defendant's assertion is true, then plaintiff's service would be ineffective and the court would lack personal jurisdiction over defendant (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d at 1075; European Am. Bank & Trust Co. v Serota, 242 AD2d at 363-364; Matt Santangelo, Inc. v Brown, 206 AD2d 463 [1994]). Thus, defendant's affidavit was sufficient to warrant a hearing to determine whether service was proper (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d at 1075; European Am. Bank & Trust Co. v Serota, 242 AD2d at 364).

Accordingly, the order entered February 24, 2012, insofar as appealed from, is reversed, so much of the order as, upon opening plaintiff's default and vacating the February 1, 2012 order, granted the branches of plaintiff's motion seeking to deny defendant's prior motion to vacate the default judgment and to reinstate the default judgment is vacated, and the matter is remitted to the Civil Court for a new determination of those branches of plaintiff's motion following a hearing.

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

Decision Date: May 22, 2014