Centurion Capital Corp. v Varghese

[*1] Centurion Capital Corp. v Varghese 2015 NY Slip Op 51797(U) Decided on December 8, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., MARANO and CONNOLLY, JJ.
2014-1284 W C

Centurion Capital Corporation as Assignee of Chase Manhattan Bank, Respondent,

against

Jojo Varghese, Appellant.

Appeal from an order of the City Court of Yonkers, Westchester County (Robert C. Cerrato, J.), entered April 3, 2014. The order, insofar as appealed from, upon, in effect, renewal, adhered to a prior determination denying defendant's motion to vacate a default judgment.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and the matter is remitted to the City Court for a new determination, following a traverse hearing, of defendant's motion to vacate the default judgment.

In this action to recover for breach of a credit card agreement and based on an account stated, a default judgment was entered on April 17, 2006, upon an affidavit of service alleging that defendant had been personally served at 67 Raybrook Road, Yonkers, New York, on December 24, 2005. The record also contains an affidavit which set forth that the summons and complaint had been mailed to defendant at 52 Secor Place # 2, Yonkers, New York, on February 1, 2006. On December 13, 2013, defendant moved to vacate the default judgment, contending that he had not received any letter or notice regarding this case. In addition, he claimed, among other things, that the alleged debt was not his. The City Court denied the motion, finding that defendant had failed to demonstrate a reasonable excuse for his default. Thereafter, defendant moved, in effect, for leave to renew his prior motion to vacate the default judgment, based on new facts (see CPLR 2221 [d] [2] [e]). The City Court, treating the motion as one for reargument, adhered to its prior determination.

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 and the defendant asserts that the purported service pursuant to CPLR 308 (1) was made at an address where the defendant did not reside, 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 343, 344 [2003]).

Accordingly, the order, insofar as appealed from, is reversed and the matter is remitted to the City Court for a new determination, following a traverse hearing, of defendant's motion to vacate the default judgment.

Tolbert, J.P., Marano and Connolly, JJ., concur.

Decision Date: December 08, 2015