VACATING DEFAULT AND HEARING ON IMPROPER SERVICE

U.S. Bank N.A. v Giraldo, 2021 NY Slip Op 01282, Decided on March 3, 2021, Appellate Division, Second Department:

""When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the defendant under CPLR 5015(a)(1)" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [internal quotation marks omitted]; see Wells Fargo Bank, NA v Spaulding, 177 AD3d 817, 818; Roberts v Anka, 45 AD3d 752, 753). "'The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff'" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897, quoting Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589).

"Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308, and [a] defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action" (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819 [internal quotation marks and citations omitted]). "Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant [*2]was validly served" (U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988; see US Bank, N.A. v Schumacher, 172 AD3d 1137, 1137; Fuentes v Espinal, 153 AD3d 500, 501). "'However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing'" (US Bank, N.A. v Schumacher, 172 AD3d at 1138, quoting U.S. Bank, N.A. v Peralta, 142 AD3d at 988-989).

Here, the process server's affidavit of service constituted prima facie evidence of valid service pursuant to CPLR 308 (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819). However, Giraldo's affidavit in support of his motion, in which he denied that he was served, denied that he ever lived at the address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual physical appearance, was sufficient to rebut the process server's affidavit (id. at 819; FV-1, Inc. v Reid, 138 AD3d 922, 923-924; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897).

Accordingly, a hearing is warranted on the issue of the validity of service of process upon Giraldo, and we remit the matter to the Supreme Court, Nassau County, for that purpose and a for a new determination of his motion thereafter."

AND INDIVIDUALS SHOULD UPDATE DMV WITH ANY CHANGE OF ADDRESS

Last week, I reported on a case which illustrated a corporation's obligation to keep the Secretary of State advised of [its] current and correct address and that its failure to receive process due to [its] breach of the obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its default....well the same goes with individuals and the DMV. And this case illustrates why.

Sheikh v. BOHTIS, 2020 NY Slip Op 51052 - NY: City Court, Civil Court September 11, 2020:

"It is well established law that it is within the sole discretion of the court in the interest of justice to vacate default judgment based upon "excusable default" pursuant to CPLR 5015(a)(1). At issue in this instant matter is CPLR 5015(a)(1):

a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry

To vacate a default judgment pursuant to CPLR 5015(a)(1) movant must demonstrate a reasonable excuse for its failure to appear and file answer to complaint as well as potentiality of a meritorious defense to the cause of action (see Eugene Di Lorenzo, Inc. v. A. C. Dutton Lumber Co., 67 NY2d 138, 141, 492 NE2d 116, 118, 501 NYS 2d 8, 10, 1986 NY LEXIS 17531, *7 [1986], citing Gray v B. R. Trucking Co., 59 NY2d 649, 650 [1983]; Blake v City of New York, 90 AD2d 531 [2d Dept 1982]).

It is also well settled law, where a defendant provides her driver's license with a wrong address to the police and a plaintiff at the scene of a motor vehicle accident, defendant is estopped from jurisdictional defense premised on service upon a wrong address (see e.g. Gardner v Tully, 227 AD2d 587, 643 NYS 2d 204, 1996 NY App Div LEXIS 6110, *3 [2d Dept 1996]; Anello v Barry, 149 AD2d 640, 540 NYS 2d 460 [2d Dept 1989]; Lavery v Lopez, 131 AD2d 820, 517 NYS 2d 182 [2d Dept 1987]; Treutlein v Gutierrez, 129 AD2d 791, 514 NYS 2d 781 [2d Dept 1987]; Hill v Jones, 113 AD2d 874, 493 NYS 2d 603 [2d Dept 1985]). "This is particularly so where a defendant has failed to keep the Department of Motor Vehicles apprised of any change of address, as required by Vehicle and Traffic Law § 505 (5), with the result that the plaintiff's process server is misdirected in his or her efforts to locate and serve the defendant" (Gardner v Tully, 227 AD2d at 588, citing McNeil v Tomlin, 82 AD2d 825, 439 NYS 2d 430 [2d Dept 1981]; see also Harrington v Dickinson, 159 AD2d 876, 553 NYS 2d 219 [3d Dept 1990]; Kramer v Ryder Truck Rental, 112 AD2d 194, 490 NYS 2d 863 [2d Dept 1985]). Vehicle Traffic Law § 505 (5) is a strict liability law:

"5. Change of address. It shall be the duty of every licensee to notify the commissioner in writing of any change of residence of such licensee within ten days after such change occurs and to make a notation of such change of residence on such license in the place provided by the commissioner."

This is a statutory mandate to be adhered to and not a mere suggestion or recommendation. The motor vehicle licensee who notifies the Commissioner of Motor Vehicles on the eleventh day of any change of residence is in violation of the law and subject to enforcement. Accordingly, defaulted defendant who fails to comply will be and has been estopped by precedential law from claiming improper service premised on her former address (see Hill v Jones, 113 AD2d 874 [2d Dept 1985]; Kramer v Ryder Truck Rental, 112 AD2d 194; see generally Lavery v Lopez, 131 AD2d 820 [2d Dept 1987]; Poet v Kolenda, 142 AD2d 633, 530 NYS 2d 589 [2d Dept 1988]). It stands to reason, where defaulted defendant has violated law, she should not benefit from her violation to the detriment of an aggrieved party. Particularly, where said violation of Vehicle Traffic Law § 505 (5) directly affects redress of alleged aggrieved party as a result of an MVA. A motor vehicle license is a statutory privilege to allow licensee to traverse the intrastate and interstate roads. In order to enjoy said privilege the Vehicle Traffic Laws must be strictly adhered to.

In this instant matter, Defendant herein violated Vehicle Traffic Law § 505 (5) for six years yet continued to enjoy the privilege afforded by the Commissioner of Motor Vehicles, a driver's license to traverse the roads. More so probative, it was as a result of the exercise of this statutory privilege that allowed Defendant to be engaged in the MVA at issue, resulting in this cause of action, resulting in default judgment that he now complains of as not having been received because sent to a former address and not his current address, which he caused by not providing his current address. It was incumbent on Defendant to comply with the law if he intended to continue to exercise this privilege conferred upon him by the Commissioner of Motor Vehicles. Defendant states that because he provided his vehicle registration with his new address to the police at the scene of the accident, which was then placed on the police accident report evidenced that he had no intent to misrepresent or deceive.^[1] However, this does not cure Defendant's violation of Vehicle Traffic Law § 505 (5) which does not require an element of intent, thus being a strict liability law. Defendant's driver's license is deemed an instrumentality of identification of the person, whereas the vehicle registration is an instrumentality of identification for the vehicle. As a practical matter, there are occasions where a New York State driver's license address and her motor vehicle registration's address for same person may be so divergent where the latter bears an out of state address. Therefore, an address on a vehicle registration is not dispositive nor necessarily relevant as to the address or domicile of Defendant. Rather, a driver's license as an instrumentality of identification of the person is relied upon not merely as a licensee to traverse interstate and intrastate roads but for other legal mandates, including national security. It is not incumbent on the aggrieved party of an MVA to choose vehicle registration address versus driver's license address on a police accident report. Particularly of note, where the defaulted judgment is granted in the jurisdiction of Small Claims Court:

"Small claims shall be commenced upon the payment by the claimant of a filing fee of fifteen dollars for claims in the amount of one thousand dollars or less and twenty dollars for claims in the amount of more than one thousand dollars, without the service of a summons and, except by special order of the court, without the service of any pleading other than a statement of his cause of action by the claimant or someone in his behalf to the clerk, who shall reduce the same to a concise, written form and record it in a docket kept especially for such purpose. Such procedure shall provide for the sending of notice of such claim by ordinary first class mail and certified mail with return receipt requested to the party complained against at his residence, if he resides within the city of New York, and his residence is known to the claimant, or at his office or place of regular employment within the city of New York if he does not reside therein or his residence within the city of New York is not known to the claimant. If, after the expiration of twenty-one days, such ordinary first class mailing has not been returned as undeliverable, the party complained against shall be presumed to have received notice of such claim. Such notice shall include a clear description of the procedure for filing a counterclaim, pursuant to subdivision (c) of this section"

(NY CLS NYC Civil Ct Act § 1803[a]). Service of Small Claims action is effectuated not by process server, but rather by Clerk of the Small Claims Court by first class mail to New York City domicile. Therefore, issue of due diligence by process server in investigating defendant's correct address is not at issue herein. Because this matter is brought within "The People's Court", procedures in law are somewhat relaxed to allow mostly pro-se aggrieved parties to have their day in court. The correct address and domicile of Defendant on his driver's license in causes of action for MVA in Small Claims Court is paramount in the dispensation of justice. Violation for six years of Vehicle Traffic Law § 505(5) by Defendant failing to supply his new address for his driver's license yet having placed his new address on the vehicle registration is not excusable default. Finding otherwise, would reward Defendant for his six-year violation of the strict liability Vehicle Traffic Law which provided him the privilege to operate the motor vehicle. It is his exercise of this privilege which caused him to be a party in this instant MVA, in the first instance, for which he had a duty to provide his current address and domicile to the Commissioner of Motor Vehicles, the police and the Plaintiff at the scene of the MVA in which he was a party to. It is within the exclusive province and sound discretion of the court in the interest of justice whether an excuse presented for the default is reasonable to invoke its judicial discretion to grant relief from default judgment. Defendant's actions and omissions are not reasonable and therefore, not excusable default pursuant to CPLR 5015(a)(1). Failing to have established reasonable excuse obviates any analysis into the second prong, potentiality of meritorious defense. Consequently, This Court declines to invoke its judicial discretion to vacate Defendant's default judgment."

CORPORATIONS AND OTHER ENTITIES SHOULD UPDATE NYS SECRETARY OF STATE WITH ANY CHANGE OF ADDRESS

And this case illustrates why.

Schwartzberg v. PRO-ACTIVE HOLDINGS, LLC, 2020 NY Slip Op 32980 - NY: Supreme Court September 11, 2020:

"It is well settled that a defendant seeking to vacate a default judgment pursuant to CPLR 5015(a) "must demonstrate a reasonable excuse for the delay, as well as a meritorious defense to the action." Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d 510 (1st Dept 2010); see also Matter of Messiah G. (Giselle F.), 168 AD3d 420 (1st Dept 2019). This Court has the discretion to determine whether the proffered excuse is sufficient. Rodgers v 66 E. Tremont Hgts. Hous. Dev. Fund Corp., 69 AD3d at 510.

In his affidavit in support of the motion, Ramson states, inter alia, that:

[a]s for a reasonable excuse for [defendant's] default, all I can say is that by the time [p]laintiff commenced [the captioned action], [defendant] had all but ceased its operations and had vacated its [office] located at 50 Broad Street in Manhattan. This was the address [defendant] had designated for service upon it by New York's Secretary of State. For this reason, [p]laintiff's [motion for summary judgment in lieu of complaint] and the resulting [j]udgment were not received by me until the end of 2018, well after the fact."

Doc. 18 at par. 20.

Ramson admits, "[u]pon information and belief", that defendant was served with the motion via the Secretary of State pursuant to Business Corporation Law § 306 and that the Secretary of State presumably mailed the summons and moving papers to defendant's former address on Broad Street.^[1] Doc. 23. Thus, Ramson does not dispute that the defendant was properly served at the Broad Street address on file with the Secretary of State. A presumption of receipt arises once service is completed on the Secretary of State, defendant's designated agent, regardless of whether it is actually received by the company's representative. See 26 Warren Corp. v Aetna Cas. & Sur. Co., 253 AD2d 375, 376 (1st Dept 1998). Although Ramson maintains that defendant no longer occupied the Broad Street address, he does not specify when it vacated the premises or whether it ever had a subsequent address. If defendant was no longer at the Broad Street address, it had an obligation to "keep the Secretary of State advised of [its] current and correct address" and its failure "to receive process due to [its] breach of the obligation to keep a current address on file with the Secretary of State ... does not constitute a reasonable excuse" for its default. Crespo v A.D.A. Mgmt., 292 AD2d 5, 10-11.

Despite his claim that defendant had "all but ceased its operations" by the time this action was commenced, this representation is extremely vague. Does it mean that the company was winding down? That it went bankrupt? That it was dissolved? Even assuming, arguendo, that defendant was no longer in business, "a dissolved corporation may sue or be sued." See Ford v. Pulmosan Safety Equipment Corp., 52 AD3d 710, 711 (2d Dept 2008) (citation omitted). Therefore, this, too, does not constitute a reasonable excuse.

Ramson further proffers as an excuse that, since he and plaintiff were friends, the latter knew how to communicate with him but "never bothered to email [him] any notification that he had filed a motion for [summary judgment]." Doc. 18 at par. 21. However, this contention, based solely on Ramson's personal expectations and devoid of any legal support, does not establish a reasonable excuse.

Given that defendant clearly failed to establish a reasonable excuse for its default, there is no need to address whether it has a meritorious defense, and, thus, the branch of the motion seeking relief pursuant to CPLR 5015(a)(1) is denied."

VACATING A FRAUDULENTLY FILED UNCONTESTED DIVORCE

The real mystery of this case is which spouse was responsible for the original uncontested filing.

LUZ S. v. CESAR P., 2020 NY Slip Op 50873 - NY: Court of Claims July 28, 2020:

By prior Decision and Order of this Court, dated April 24, 2020, it was ordered that motion sequence 001, filed by Plaintiff Luz S. ("Plaintiff") to "vacate the [February 2011] judgment of divorce with index number [redacted] and for any other relief deemed just and proper" was granted solely to the extent that the Court was to conduct an evidentiary hearing upon the motion. In her motion, Plaintiff alleged that the 2010 filings in this uncontested matrimonial action were fraudulent, in that what purported to be her signatures (on the filed Verified Complaint, Plaintiff's Affidavit, and Affidavit of Regularity) were not signed by her. This court, on consent of all parties and counsel, set the evidentiary hearing upon the motion for May 22, 2020, including provisions for remote appearances and receipt of documents in evidence [see April 24, 2020 Decision and Order].

Subsequent to the April 24, 2020 Decision and Order, and before the scheduled May 22, 2020 hearing, the court received a stipulation in this action, which is attached to the herein order, wherein both parties conceded that the signatures in the underlying divorce were not authentic:

WHEREFORE, the Order to Show Cause presently pending before the Court is settled in part insomuch as it is agreed by and between the parties having reviewed the documents filed in the instant action in 2010, purported to be bearing the signatures of the plaintiff and the defendant herein do not in fact bear their signatures.

That the signatures on said documents in the 2010 filing were not actually signed by the plaintiff nor the defendant herein themselves.

That the instant stipulation is signed by counsel upon review of the stipulation with their respective clients and having received their respective clients' consent to enter into this stipulation and sign on their behalf.

/s/ Herbert Smith, Esq., Attorney for Defendant /s/ Virginia G. Alvarez, Esq., Attorney for Plaintiff

Therefore, both parties now certified that none of the signatures in the underlying divorce filing, Verified Complaint, Plaintiff's Affidavit, or Defendant'sAffidavit were actually the signatures of either the plaintiff or defendant herein. Neither party explains how the so-called uncontested divorce documents came to be filed in this court, whether at the behest of one of the parties or otherwise. Nevertheless, there is no dispute that the underlying 2010 divorce filing and the 2011 judgment of divorce were fraudulently obtained on the basis of fraudulent signatures.

As the Court of Appeals stated in 2003, a court has broad powers to vacate its own judgment "for sufficient reason and in the interests of substantial justice," including, in addition to the reasons listed in CPLR § 5015(a) (some of which reasons are limited to default judgments, although some subsections, including fraud, are not limited to default judgments):

Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order. These categories represent a codification of the principal grounds upon which courts have traditionally vacated default judgments as part of their "inherent discretionary power" (see Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C5015:11, at 476 [1992]). It thus follows that section 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated. Indeed, the drafters of that provision intended that courts retain and exercise their inherent discretionary power in situations that warranted vacatur but which the drafters could not easily foresee (see id.; 3d Preliminary Report of Advisory Comm. on Practice and Procedure, 1959 NY Legis Doc. No. 17, at 204).

In addition to the grounds set forth in section 5015(a), a court may vacate its own judgment for sufficient reason and in the interests of substantial justice (see Ladd v. Stevenson, 112 NY 325, 332, 19 N.E. 842 [1889] Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 (2003).

In the Ladd v. Stevenson, 112 NY 325, 332 (1889) case cited by the Court of Appeals in Woodson, the 1889 Court of Appeals stated "The whole power of the court to relieve from judgments taken through `mistake, inadvertence, surprise, or excusable neglect' is not limited by [then in effect] section 724; but in the exercise of its control over its judgments it may open them upon the application of any one for sufficient reason in the furtherance of justice. Its power to do so does not depend upon any statute, but is inherent, and it would be quite unfortunate if it did not possess it to the fullest extent." See also State of New York Mortg. Agency v. Braun, 182 AD3d 63, 78 (2d Dept 2020) ("In appropriate instances, an order, or even a judgment, may be vacated where it is inconsistent with the relief being granted") (citing Woodson); Matter of Cassini, 182 AD3d 13, 55-56 (2d Dept 2020) (vacating a default judgment, citing Woodson and Ladd, stating that "a court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through fraud, mistake, inadvertence, surprise or excusable neglect").


In the instant case, every single document filed in 2010 (alleged by the parties in their allegedly uncontested divorce action) was fraudulently signed. The entire action is permeated by these fraudulent submissions. This complete fraud on the court requires the court to vacate its own 2010 judgment of divorce in the interests of substantial justice, and to dismiss the 2010 fraudulently-filed complaint in this Index number (without prejudice to the actual party-spouses filing for divorce, whether in this or another appropriate jurisdiction, if either of them so desires)."

E FILING ELIMINATES EXCUSE FOR DEAFULT

E Filing is convenient but it also negates a lack of notice.

U.S. Bank, N.A. v Essaghof, 2019 NY Slip Op 08888, Decided on December 11, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination to deny the defendants' motion pursuant to CPLR 5015(a)(1). "A party seeking to vacate an order entered upon his or her failure to oppose a motion is required to demonstrate, through the submission of supporting facts in evidentiary form, both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion" (Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284; see CPLR 5015[a][1]; Kondrotas-Williams v Westbridge Enters., Inc., 170 AD3d 983, 985; Soto v Chelsea W26, LLC, 166 AD3d 1048, 1049). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" (Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 886; see Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705; New Century Mtge. Corp. v Chimmiri, 146 AD3d 893, 894). "The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default" (Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252; see Torres v Rely On Us, Inc., 165 AD3d 731, 733; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138). "Conclusory and unsubstantiated allegations of law office failure are not sufficient" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see LaSalle Bank, N.A. v LoRusso, 155 AD3d 706, 707; U.S. Bank N.A. v Barr, 139 AD3d 937, 937-938). "[M]ere neglect [*2]is not a reasonable excuse" (Torres v Rely On Us, Inc., 165 AD3d at 733 [internal quotation marks omitted]; see OneWest Bank, FSB v Singer, 153 AD3d 714, 716; JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048, 1049).

In support of their motion, the defendants submitted an affirmation from their attorney, who explained that he had left for Florida on a two-week vacation for his wedding and honeymoon a day before the plaintiff served and filed its motion. Counsel asserted that, when he returned and checked his unread emails, the email to which the plaintiff's motion papers were annexed was not among his unread emails, and therefore he was "unaware that Plaintiff had filed [its] motion."

In opposition to the defendants' motion, the plaintiff submitted copies of numerous New York State Courts Electronic Filing (hereinafter NYSCEF) email notifications and alerts from the Supreme Court, Suffolk County, sent prior to the return date of the plaintiff's motion, demonstrating that at least five separate automated court notices concerning the plaintiff's motion filing had been emailed to the defendants' attorney prior to the return date of the plaintiff's motion, including one that was emailed more than two weeks after the defendants' attorney left for his two-week vacation. Absent any explanation that would take into account the email notification that arrived after he had returned to the office, and his failure to provide the exact details concerning when he became aware of the default and precisely what he did upon learning of the order granting the plaintiff's unopposed motion (cf. Diamond v Leone, 173 AD3d 686, 687-688), the defendants' claim of law office failure was insufficient to demonstrate a reasonable excuse for their default (see Option One Mtge. Corp. v Rose, 164 AD3d at 1252)."

LAW OFFICE FAILURE

We all make mistakes but when alleging it as an excusable default on a motion to vacate under CPLR 5015 (a) (1), be specific in your allegations.

For example in Bank of N.Y. Mellon v Faragalla, 2019 NY Slip Op 05641, Decided on July 17, 2019, Appellate Division, Second Department:

"A party seeking to vacate a default in opposing a motion or in appearing at a conference must demonstrate both a reasonable excuse for its default and a potentially meritorious cause of action or defense (see CPLR 5015[a][1]; OneWest Bank, FSB v Singer, 153 AD3d 714, 715-716; Flagstar Bank, FSB v Damaro, 145 AD3d 858, 859-860; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189; GMAC Mtge., LLC v Guccione, 127 AD3d 1136, 1138).

"A motion to vacate a default is addressed to the sound discretion of the motion [*2]court" (Aurora Loan Servs., LLC v Ahmed, 122 AD3d 557, 557-558 [internal quotation marks omitted]; see U.S. Bank, N.A. v Dorvelus, 140 AD3d 850, 852; Forward Door of N.Y., Inc. v Forlader, 41 AD3d 535). "In making that discretionary determination, the court should consider relevant factors, such as the extent of the delay, prejudice or lack of prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907, 908; see Lyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614; Fried v Jacob Holding, Inc., 110 AD3d 56, 60).

Under the circumstances presented here, the appellants set forth a reasonable excuse for their failure to appear at the centralized motion part of the Supreme Court on the return date of the plaintiff's motion based on evidence of law office failure. In an affirmation, the appellants' attorney explained that upon receiving the plaintiff's motion, he directed his office's legal assistant to note the return date of the motion on the office calendar, but that the return date had not been noted on the calendar. In addition, the appellants demonstrated a potentially meritorious defense based upon the statute of limitations. Thus, the Supreme Court improvidently exercised its discretion in denying that branch of the appellants' motion which was to vacate their default in opposing the plaintiff's motion, inter alia, for summary judgment (see Flagstar Bank, FSB v Damaro, 145 AD3d at 859-860; U.S. Bank, N.A. v Bukobza, 142 AD3d 1070, 1071; Bank of N.Y. v Segui, 120 AD3d 1369, 1373-1374; see also CPLR 2005; Bayview Loan Servicing, LLC v Martano, 131 AD3d 1187, 1189)."

Compare that to HSBC Bank USA, N.A. v Coronel, 2019 NY Slip Op 05648, Decided on July 17, 2019, Appellate Division, Second Department:

"We agree with the Supreme Court's determination in an order entered November 28, 2016, to deny the motion of the defendant Alex Coronel (hereinafter the appellant) pursuant to CPLR 5015(a)(1) to vacate a prior order dated November 6, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the complaint, as well as the court's determination to deny vacatur of an order dated October 7, 2016, granting the plaintiff's motion for a judgment of foreclosure and sale. The appellant's unsubstantiated and conclusory claim of law office failure was insufficient to demonstrate a reasonable excuse for his default in opposing the plaintiff's motion, inter alia, for summary judgment (see Bank of N.Y. Mellon v Ruci, 168 AD3d 799, 800; IndyMac Bank, FSB v Izzo, 166 AD3d 866, 868; Option One Mtge. Corp. v Rose, 164 AD3d 1251, 1252). In light of the appellant's failure to establish a reasonable excuse for his default, it is not necessary to determine whether he demonstrated a potentially meritorious opposition to the motion (see Nationstar Mtge., LLC v Ramnarine, 172 AD3d 886, 887; Bank of N.Y. Mellon v Ruci, 168 AD3d at 800; Hudson City Sav. Bank v Bomba, 149 AD3d 704, 705)."

FOR CORPORATIONS - SECRETARY OF STATE SERVED BUT ADDRESS FOR SERVICE NOT CHANGED

Dwyer Agency of Mahopac, LLC v Dring Holding Corp., 2018 NY Slip Op 06001, Decided on September 12, 2018, Appellate Division, Second Department:

:CPLR 317 provides that a person served with a summons, other than by personal delivery to him or her, who does not appear, may be allowed to defend the action within one year after he or she obtains knowledge of entry of the judgment upon a finding of the court that he or she did not personally receive notice of the summons in time to defend and has a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Moran v Grand Slam Ventures, LLC, 160 AD3d 944, 945). However, the "mere denial of receipt of the summons and complaint is not sufficient to establish lack of actual notice of the action in time to defend for the purpose of CPLR 317" (Goldfarb v Zhukov, 145 AD3d 757, 758; see Moran v Grand Slam Ventures, LLC, 160 AD3d at 945; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164). Here, the defendant failed to establish that it did not personally receive notice of the summons in time to defend the action. The affidavit of the defendant's "representative," who appears to be its attorney, stated that the complaint was not delivered "personally" to the defendant, but rather, "to an inaccurate address through the Secretary of State," which address had not been valid "for several years." This representative's affidavit does not appear to be based on personal knowledge. Furthermore, there is no allegation contained in this affidavit that the defendant, in fact, never received the summons and complaint, nor is there any detail as to where the defendant moved to and when, nor whether the defendant made any efforts to update its address on file with the Secretary of State. Under these circumstances, the defendant did not demonstrate lack of actual notice of the action (see Moran v Grand Slam Ventures, LLC, 160 AD3d at 945; Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 725-726).

In contrast to a motion pursuant to CPLR 317, on a motion pursuant to CPLR 5015(a)(1), the movant is required to establish a reasonable excuse for his or her default. In general, a defendant's failure to keep a current address on file with the Secretary of State does not constitute a reasonable excuse (see Gershman v Midtown Moving & Stor., Inc., 123 AD3d 974, 975; Sussman v Jo-Sta Realty Corp., 99 AD3d 787, 788; Bontempts v Aude Constr. Corp., 98 AD3d 1071, 1072; Castle v Avanti, Ltd., 86 AD3d 531). However, there is no per se rule that a corporation served through the Secretary of State, and which failed to update its address on file there, cannot demonstrate an "excusable default." Rather, a court should consider, among other factors, the length of time for which the address had not been kept current (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 143). Here, no evidence was presented as to how long the address was not updated. Accordingly, the defendant failed to establish a reasonable excuse for its default."

MORTGAGE FORECLOSURE - HOMEOWNER COULD NOT VACATE DEFAULT

HSBC Bank USA, N.A. v Daniels, 2018 NY Slip Op 05145, Decided on July 11, 2018, Appellate Division, Second Department:

"On June 17, 2015, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) and (4) to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and for failure to comply with RPAPL 1304 or, in the alternative, for leave to serve a late answer. Among other things, the defendants argued that the Supreme Court lacked personal jurisdiction over them because Daniels was not properly served with the summons and complaint. In an order dated October 29, 2015, the court denied the motion without a hearing. The defendants appeal.

Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1) (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985; HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860, 862-863; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047; Roberts v Anka, 45 AD3d 752, 753).

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 896-897). "[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (McMullen v Arnone, 79 AD2d 496, 499; see Feinstein v Bergner, 48 NY2d 234, 241; Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889).

Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service (see Citimortgage, Inc. v Baser, 137 AD3d 735, 736; American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Velez v Forcelli, 125 AD3d 643, 644). "However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630, 631; see Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825).

Here, the process server's affidavit of service established, prima facie, that Daniels was served with the summons and complaint pursuant to CPLR 308(4) (see Wells Fargo Bank, NA v Besemer, 131 AD3d at 1048; HSBC Bank USA v Desrouilleres, 128 AD3d 1013, 1014; JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777, 777-778). Contrary to the defendants' contention, Daniels' conclusory denial of service was insufficient to rebut the presumption of proper service established by the affidavit of service (see HSBC Bank USA, N.A. v Dalessio, 137 AD3d at 863; HSBC Bank USA v Desrouilleres, 128 AD3d at 1014; U.S. Bank N.A. v Hasan, 126 AD3d 683, 684). Verwayne did not submit any sworn denial of service. Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 5015(a)(4).

To the extent that the motion sought vacatur pursuant to CPLR 5015(a)(1), the defendants were not entitled to such relief since they failed to set forth a reasonable excuse for their default, and it is, therefore, unnecessary to consider whether they sufficiently demonstrated a potentially meritorious defense, including the plaintiff's alleged failure to satisfy the requirements of RPAPL 1304 (see Bank of Am., N.A. v Agarwal, 150 AD3d 651, 652)."