| North Am. Partners In Anesthesia v Chideckel |
| 2016 NY Slip Op 50203(U) [50 Misc 3d 141(A)] |
| Decided on February 22, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), dated September 30, 2013. The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is reversed, without costs, and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether personal jurisdiction was properly obtained over defendant.
In July 2004, plaintiff commenced this action to recover the principal sum of $1,800, representing the unpaid balance due for professional medical services which had been rendered to defendant. The affidavit of service of process indicates that the summons and verified complaint were delivered to one "Rosemary Chideckel, relative of defendant," a person of suitable age and discretion, at defendant's Woodmere, New York, address and were subsequently mailed to the same address (see CPLR 308 [2]). After defendant failed to appear or answer, a default judgment was entered against him on January 3, 2005 in the principal sum of $1,800.
In August 2013, defendant moved to vacate the default judgment, arguing, in effect, that the default judgment should be vacated based upon a lack of personal jurisdiction (CPLR 5015 [a] [4]), and that he had a reasonable excuse for his default in that he had never received the summons and complaint. He contended that "Rosemary Chideckel," the relative who had allegedly been served with process, did not exist. Defendant appeals from an order dated September 30, 2013 which denied his motion.
It is well established that a process server's sworn affidavit of service constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]; Wachovia Bank, N.A. v Carcano, 106 AD3d 726 [2013]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]). However, where, as here, a defendant's sworn statement denying receipt of service contains "specific facts to rebut the statements in the process server's affidavit[ ]" (Simonds v Grobman, 277 AD2d 369, 370 [2000]), a traverse hearing is necessary in order to determine whether service of process was properly effectuated pursuant to CPLR 308 (2) (see Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813 [2013]; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824 [2011]).
In the event that the court determines, following the traverse hearing, that personal [*2]jurisdiction was properly obtained over defendant, defendant's motion to vacate the default judgment must be denied, as we find that his motion papers failed to establish his entitlement to relief based upon an excusable default (see CPLR 5015 [a] [1]) since they failed to set forth a potentially meritorious defense to the action.
Accordingly, the order is reversed and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether personal jurisdiction was properly obtained over defendant.
Iannacci, J.P., Tolbert and Connolly, JJ., concur.