The Defendants move for an order vacating a judgment entered against them, on default, on February 1, 1999, in the sum of $5,130.48. The Plaintiff opposes the motion.

The Defendant, Kathleen A. Mifsud, named herein as Kathleen A. Midsud, alleges that the Summons and Complaint herein "was never served upon me either directly or by mail or by substitute on my husband Victor Mifsud and we never appeared, answered, or made a motion with respect to the complaint herein." (Kathleen A. Mifsud Affidavit 5/1/07, ¶ 4) The Defendant, Victor Mifsud, alleges the same. The Defendant, Kathleen A. Mifsud, further alleges that neither she nor the Co-Defendant, her husband, resided in Apartment 1B, at premises, 819 Broadway, Woodmere, New York, on the date of the alleged service of the Summons and Compaint, but resided in a basement apartment marked "Super." Defendants also claim that the they were "advised that a judgment was entered by the Plaintiff in late February 2007, when [they] received a notice from the Bank ...." (Kathleen A. Mifsud Affidavit 5/1/07, ¶ 3), (Victor Mifsud Affidavit 5/2/07, ¶ 4)

In opposition to this motion, the Plaintiff submit two affidavits of service alleging that the Defendants were served pursuant to CPLR § 308(2) at 819 Broadway, Apt. 1B Woodmere, New York on November 19, 1998 and that a subsequent mailing was made to the Defendants at the same address.

The Plaintiff alleges that on May 2, 2002, following the entry of the default judgment, the Defendant, Victor Misfud, called counsel's office to inquire about a restraint placed on an account of the Defendants at the Roslyn Savings Bank. The Plaintiff further alleges that one of the Defendants made a second such call to counsel on May 17, 2002. The Plaintiff acknowledges that it failed to take any action on this restrained account for more than one year and that the account was thereafter released to the Defendants. The Plaintiff claims that sometime thereafter it restrained the Defendants' North Fork Bank account and again heard from the Defendant, Victor Misfud, on February 20, 2007 and, thereafter, issued an information subpoena.

The Plaintiff correctly argues that before the Defendants may obtain an order vacating the default judgment, allowing them to interpose an answer, they must demonstrate a reasonable [*2]excuse for their default and a meritorious defense to the Plaintiff's Complaint,CPLR §§ 5015(a)(1); Eugene Di Lorenzo, Inc. v. A.C. Dutton Lumber Co., Inc., 67 NY2d 138, 501 NYS2d 8 (1986); Mele v. Okubo, 36 AD3d 599, 827 NYS2d 284 (2nd Dept. 2007), and that the Defendants have, at the very least, failed to set forth a meritorious defense. Nevertheless, whether or not the Defendants have stated a meritorious defense, any default judgment against a party over whom the court lacks jurisdiction is a nullity, Government Employees Ins. Co. v. Basedow, 28 AD3d 766, 816 NYS2d 106 (2nd Dept. 2006); Steele v. Hempstead Pub Taxi, 305 AD2d 401, 760 NYS2d 188 (2nd Dept. 2003); and, the judgment will be vacated where service was not proper and personal jurisdiction was never obtained. Cartier v. County of Nassau, 281 AD2d 447, 722 NYS2d 45 (2nd Dept, 2001); McMullen v. Arnone, 79 AD2d 496, 437 NYS2d 373 (2nd Dept. 1981).

The Plaintiff argues that, while the Defendants claim that service was not made upon them, they "do not deny receiving suit papers." (Ellison Affirmation 5/25/07, ¶ 18) Receipt of papers by a means other than proper service and/or the Defendants' actual notice of a law suit does not, however, render service proper or provide personal jurisdiction over the Defendants. Shaw v. Shaw, 97 AD2d 403, 467 NYS2d 231 (2nd Dept. 1983); DeMartino v. Rivera, 148 AD2d 568, 539 NYS2d 38 (2nd Dept. 1989)

The Plaintiff further argues that in appropriate circumstances a defendant may be deemed to have waived his or her jurisdictional objections. While the Plaintiff is correct, such circumstances are not present in this matter. The Plaintiff's reliance on cases such as Revona Realty Corp. v. Wasserman, 4 AD2d 444, 166 NYS2d 960 (3rd Dept. 1957); Roosevelt Hardware v. Green, 72 AD2d 261, 424 NYS2d 276 (2nd Dept. 1980); Long Island Trust Company, N.A. v. PTI International Corp. of New York, 166 AD2d 504, 560 NYS2d 786 (2nd Dept.1990); Citibank USA f/k/a Travelers Bank v. Wall, 2003 WL 21170483 (Civ. Ct. NY Co. 2003); Lomando v. Duncan, 257 AD2d 649, 684 NYS2d 569 (2nd Dept.1999) and Star Credit Corporation v. Ingram,71 Misc 2d 787, 337 NYS2d 245 (Civ.Ct. NY Co. 1972) is misplaced, as each of those cases is readily distinguishable.

In each of the cases relied upon by the Plaintiff, the defendants therein either explicitly or implicitly participated in the action and/or acknowledged the validity of the judgment. In Revona Realty Corp. v. Wasserman, supra ., counsel for the defendant made what was then known as an "unrestricted appearance" in the proceeding; in Roosevelt Hardware v. Green, supra ., the defendant entered into a stipulation to vacate the judgment and to appear in the action; in Long Island Trust Company, N.A. v. PTI International Corp. of New York, supra ., there was no jurisdictional issue, only a delay in moving to vacate a default judgment; in Citibank USA f/k/a Travelers Bank v. Wall, supra ., the court had ordered the defendant to serve an answer and the defendant allowed her salary to be garnished until the judgment was almost paid in full; in Lomando v. Duncan, supra ., the defendant made a partial payment of the judgment to release a lien, which the court determined impliedly acknowledged the validity of the judgment; and, in Star Credit Corporation v. Ingram, supra ., the defendant similarly made payments toward satisfaction of the judgment. In the matter sub judice, however, nowhere does the Plaintiff suggest that the Defendants explicitly or implicitly participated in this litigation at any time before or after the default judgment was entered. The only conduct the Plaintiff attributes to the Defendants are three telephone calls inquiring about restraints placed upon their accounts. The Plaintiff's self serving statements that "no settlement was realized at that time" (Ellison [*3]Affirmation 5/25/07, ¶ ¶ 9,10, 13) does not show any participation by the Defendants and is contrary to any suggestion that the Defendants acknowledged the validity of the judgment.

The Plaintiff's process server's affidavits of service are, however, prima facie evidence of proper service. Sando Realty Corp. v. Aris, 209 AD2d 682, 619 NYS2d 140 (2nd Dept. 1994); 96 Pierrepont, LLC v. Mauro, 304 AD2d 631, 757 NYS2d 468 (2nd Dept. 2003); Simmons First National Bank v. Mandracchia, 248 AD2d 375, 669 NYS2d 646 (2nd Dept. 1998). To overcome this prima facie evidence, the Defendants cannot simply deny receipt of the Summons and Complaint, but must set forth facts substantiating this claim. Colon v. Beekman Downtown Hospital, 111 AD2d 841, 490 NYS2d 581 (2nd Dept. 1985); Ruskin, Moscou, Evans, & Faltischek, P.C. v. Beal, 212 AD2d 687, 622 NYS2d 598 (2nd Dept. 1995); Wunsch v. Cerwinski, 36 AD3d 612, 828 NYS2d 157 (2nd Dept. 2007); Sime v. Ludhar, 37 AD3d 817, 830 NYS2d 775,(2nd Dept. 2007). The Defendants have satisfied this burden by claiming that they did not live in apartment 1B, where service was allegedly made, which appears to be supported by documents submitted by the Plaintiff, as part of its Exhibit "A," indicating that the Defendants resided in the "Supt." apartment at 819 Broadway, Woodmere, New York while apartment 1B thereat was apparently owned by a Phyllis Perlman and Philip Perlman.

Based upon the foregoing, the question of personal jurisdiction remains undetermined at this time and can only be resolved following a traverse hearing on the issue of service. Accordingly, it is hereby

ORDERED, that the parties appear for a traverse hearing at Nassau County District Court, First District Civil Part 3, at 99 Main Street, Hempstead, New York, on the 28th day of August, 2007at 9:30 a.m.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

August 9, 2007

___________________________

Andrew M. Engel

J.D.C.