Upon the reading and filing of the following papers in this matter: (1) Notice of Motion/ Order to Show Cause by the defendants, dated September 29, 2015, and supporting papers (including Memorandum of Law dated); (2) Notice of Cross Motion by the , dated , supporting papers; (3) Affirmation in Opposition by the plaintiff, dated September 24, 2015, and supporting papers; (4) Affirmation in Opposition by the third party purchaser, dated October 28, 2015, and supporting papers; Reply Affirmation by the plaintiff, and supporting papers; (5) Other(and after hearing counsels' oral arguments in support of and opposed to the motion); and now, it is

ORDERED that this motion brought on by order to show cause (#003) by defendants, Dorinda Bergen and Stephen P. Bergen, for, inter alia, an order staying the commencement or continuation of any and all eviction proceedings in connection with the instant action; vacating the foreclosure sale held on July 17, 2015; vacating and setting aside the judgment of foreclosure; vacating and setting aside the order of reference; dismissing plaintiff's action pursuant to RPAPL 1304; dismissing plaintiff's action pursuant to CPLR 3215(c) for failing to timely move for a default judgment; and granting defendants leave to appear by answer, is considered under CPLR 5015(a), 3012(d), 2004, 317, 3215(c), and RPAPL 1304 and, is denied.

This is an action to foreclose a mortgage on a premises known as 19 Hopkins Commons, Yaphank, New York ("the property"). On August 17, 1988 defendant - mortgagors Dorinda Bergen and Stephen P. Bergen ("defendants") executed an adjustable rate note in favor of Chemical Bank agreeing to repay the sum of $109,000.00, at the same time, defendants executed a mortgage in the principal sum of $109,000.00 on the property.

Plaintiff JP Morgan Chase Bank, National Association ("plaintiff") commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk on December 7, 2012. Defendants were served with the summons and complaint on December 12, 2012 pursuant to CPLR § 308(4). No defendant filed an appearance or answer to the complaint.

The Court's computerized records show that foreclosure settlement conferences mandated by CPLR 3408 were held on April 25, June 27 and August 29, 2013 in the court's dedicated Foreclosure Settlement Conference Part ("FSCP"). After the last conference the case was marked "default" and referred to an IAS part as compliance with CPLR § 3408 was had.

Plaintiff's motion, upon defendants default for an order of reference pursuant to RPAPL § 1321, was marked submitted on May 8, 2014 and granted by order dated September 12, 2014 (MacKenzie, J). Thereafter, plaintiff moved for a judgment of foreclosure and sale, which was granted by order dated March 16, 2015 (MacKenzie, J). A sale of the property was conducted on July 17, 2015 and the property was sold to a third party.

Defendants now move (#003), to vacate their default in answering. This motion was originally submitted to the IAS Part which granted the judgment of foreclosure and sale. Through a clerical error, an unsigned order denying the motion, bearing markings that it was unsigned, was filed with the Suffolk County Clerk on September 1, 2016. As the justice who signed the judgement of foreclosure and sale is no longer available to hear foreclosure actions, this action was reassigned to this foreclosure part, and is being decided at the same time as plaintiff's motion (#004) for a surplus monies proceeding.

Where, as here, defendants seeks to vacate a default raising both a jurisdictional objection under CPLR § 5015(a)(4) and a discretionary vacatur pursuant to CPLR § 5015(a)(1) the court must first resolve the jurisdictional claim (see Wells Fargo v Besemer, 131 AD3d 1047 [2d Dept [*2]2015]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896 [2d Dept 2013]; HSBC Bank USA, N.A. v Dalessio, 137 AD3d 860 [2d Dept 2016]).

A process server's sworn affidavit of service constitutes prima facie evidence of proper service (see ACT Prop., LLC v Ana Garcia, 102 AD3d 712 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724 [2d Dept 2013]). A defendant may rebut the process server's affidavit by an affidavit containing specific and detailed contradictions of the allegations in the process server's affidavit requiring a hearing (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074 [2d Dept 2010]; US Bank, NA v Tauber, 140 AD3d 1154 [2d Dept 2016]; Bank of Am, NA v Tobing, 145 AD3d 941 [2d Dept 2016]; Bank of America, N.A. v Moody, 147 AD3d 712 [2d Dept 2017]), but bare, conclusory and unsubstantiated denials of receipt of the summons, complaint and notices served with them are insufficient to rebut the presumption of proper service created by the process server's affidavit (see U.S. Bank Natl. Assn. v Tate, 102 AD3d 859 [2d Dept 2013]). A defendant who fails to swear to specific facts to rebut the statements in the process server's affidavit is not entitled to a hearing on the issue of service (see Bank of NY v Espejo, 92 AD3d 707 [2d Dept 2012]; US Natl. Bank Assoc. v Melton, 90 AD3d 742, 934 NYS2d 352 [2d Dept 2011]).

Here, the process server's affidavit of service constituted prima facie evidence of proper service upon defendant pursuant to CPLR 308 (4) and defendant's conclusory and unsubstantiated denial of receipt of the summons and complaint is insufficient to rebut the presumption of proper service created by that affidavit (see Beneficial Homeowner Service Corp. v Girault, 60 AD3d 984 [2d Dept 2009]). The affidavit of defendant Dorinda Bergen asserts that she was never personally served with the summons and complaint and that service pursuant to CPLR 308(4) was ineffective as it was directed to an address containing the wrong zip code (11980 instead of 11967). However she does not dispute that at the time of service she lived at the property. In sum, all that is offered in defendant's affidavit is a general denial of service (see US Bank, NA v Arias, 85 AD3d 1014 [2d Dept 2011]). Accordingly, the portions of defendants' motion seeking a vacatur of their default for lack of personal jurisdiction is denied.

Defendants alternative claims for leave to serve and file a late answer is equally unavailing. To be entitled to such relief pursuant to CPLR 5015 (a)(1), 3021(d) and 2004, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to extend the time to answer or to compel the acceptance of an untimely answer (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890 [2d Dept 2010]; Karalis v New Dimensions HR, Inc., 105 AD3d 707 [2d Dept 2013]; Midfirst Bank v Al—Rahman, 81 AD3d 797 [2d Dept 2011]). This standard governs applications made both prior and subsequent to a formal fixing of a default on the part of defendants by the court (see Bank of New York v Espejo, 92 AD3d 707 [2d Dept 2012]; Integon Natl. Ins. Co. v Norterile, 88 AD3d 654 [2d Dept 2011]).

Here, the only excuse offered by defendants was improper service, which has been found to be without merit. Where there is failure to provide a reasonable excuse, the court need not consider claims of meritorious defenses (see One W. Bank FSB v Valdez, 128 AD3d 655 [2d Dept, 2015]); HSBC Bank USA v Miller, 121 AD3d 1044 [2d Dept 2014]; Deutsche Bank National Trust Co v Kuldip, 136 AD3d 969 [2d Dept 2016] Bank of NY Mellon v Colucci, 138 AD3d 1047 [2d Dept 2016]; US Bank Natl Assn v Barr, 139 AD3d 937 [2d Dept 2016]; Bank of [*3]NY v Krausz, 144 AD3d 718 [2d Dept 2016]). The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2d Dept 2007]; Matter of Gambardella v Ortov Light., 278 AD2d 494 [2d Dept 2000]). Since the defendants offered no other excuse for their default, they are not entitled to the relief requested. The court need not consider defendants claims of meritorious defenses.

Defendants' alternative claim for vacatur of their default under CPLR 317 is likewise denied. A party seeking to vacate his/her default pursuant to CPLR 317 must show that he/she did not personally receive notice of the summons in time to defend and has a meritorious defense (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr., Co., 67 NY2d 138 [1986]; ACT Prop., LLC v Ana Garcia, 102 AD3d 712 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Gutierrez, 102 AD3d 825 [2d Dept 2013]). The statute affords a defendant, not served by delivery in hand pursuant to CPLR 308(1), with an excusable default ground, namely, the non-receipt of personal notice of the summons in time to defend. As in the case of other excusable default grounds, the moving defendant must demonstrate his or her possession of a meritorious defense to the claims asserted ( CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Due proof of the claimed non-receipt of personal notice of the summons in time to defend is required (see Jackson v Professional Transp. Corp., 81 AD3d 602 [2d Dept 2011]; Essex Credit Corp. v Theodore Tarantini, 179 AD2d 973 [3d Dept 1992]), as a mere denial of receipt and/or an unsubstantiated claim of lack of service of the summons and complaint are insufficient to establish a lack of personal notice of the action in time to defend to obtain relief under CPLR 317 (see Stevens v Charles, 102 AD3d 763 [2d Dept 2013]; Bank of New York v Samuels, 107 AD3d 653[2d Dept 2013]).

The court finds that defendant's affidavit is devoid of sufficient credible facts demonstrating that they did not receive actual notice of the summons and complaint in time to defend the action (see Citimortgage, Inc. v Kowalski, 130 AD3d 558 [2d Dept 2015]; citing Bank of New York v Samuels, supra). Defendant's demand for a vacatur of their default pursuant to CPLR 317 and leave to serve an answer is denied.

Defendants' claim pursuant to CPLR 3215(c) is also unavailing. CPLR § 3215 (c) was enacted to dispose of abandoned cases and provides a saving provision to what is otherwise mandatory dismissal, allowing denial of such a motion by stating that the court "shall dismiss the complaint as abandoned, without costs, ..., unless sufficient cause is shown why the complaint should not be dismissed." This saving provision has been found when the plaintiff's conduct has shown that there was no intent to abandon the complaint (see LNV Corp v Forbes, 122 AD3d 805 [2d Dept 2014]; US Bank National Assoc v Wolnerman, 135 AD3d 850 [2d Dept 2016]). Where the evidence shows merit to plaintiff's claim, lack of intent to abandon the claim and sufficient cause for any alleged delay, the court should not dismiss the action for failure to move for the default within a year (see Bank of New York v Gray, 228 AD2d 399 [2d Dept 1996]; Golden Eagle Capital Corp v Paramount Mtg Corp, 143 AD3d 438 [2d Dept 2016]). The determination as to what is a reasonable excuse is committed to the sound discretion of the motion court (see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d 793 [2d Dept 2016]; Golden Eagle Capital corp. v Paramount Mgt. Corp., supra). Although defendants had defaulted prior to the settlement conferences, any motions were held in abeyance while the conferences were pending in the FSCP (see 22 NYCRR 202.12-a [c][7]; U.S. Bank, N. [*4]A. v Dorvelus, 140 AD3d 850, 852 [2d Dept 2016]). Here, unlike plaintiff in Dorvelus, supra, plaintiff submitted its motion upon the default within months of release from the FSCP. The court finds that the circumstances of this case, the acts and arguments of plaintiff have established that there was no intent to abandon the claim and defendant's application to dismiss for failure to move for default within one year of their default is denied.

Lastly, all further arguments by defendants for affirmative or injunctive relief are denied. A party may not move for affirmative relief of a non-jurisdictional nature, such as dismissal of a complaint, without first moving to vacate his/ her default (see Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011]; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011]; U.S. Bank Natl. Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Southstar III, LLC v Ettienne, 120 AD3d 1332 [2d Dept 2014]; Chase Home Finance, LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v Avella, 142 AD3d 594 [2d Dept 2016]). Even if the issue is compliance with RPAPL 1304, which is non-jurisdictional, before a defendant can raise that issue, he/she must first vacate a default in answering (see HSBC Bank, N.A. v Clayton, 146 AD3d 942 [2d Dept 2017]). In light of their status as parties in default, defendants are not entitled to affirmative relief of a non-jurisdictional nature such as a dismissal of the plaintiff's complaint pursuant to CPLR 3211 or injunctive relief of any kind absent the vacatur of their default upon the grounds enumerated in CPLR 5015, 317, 3012(d) or others available to them, if any (see Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]; Bay Crest Assn., Inc. v. Paar, 99 AD3d 744 [2d Dept 2012]). Defendants are not entitled to any of the injunctive relief demanded (CPLR 6301; see BSI, LLC v Toscano, 70 AD3d 741 [2d Dept 2010]).

The remaining contentions set forth in defendants' application, having been considered, are rejected by the Court. In view of the foregoing, the instant motion (#003) by defendants Bergen for injunctive relief, a vacatur of their default and other relief, is denied.

The affirmation in opposition to defendants' order to show cause by MIT International Commercial Lending, LLC, the third party purchaser, has not been considered as it is not a party to this action.