Opinion
No. 2013–2671 K C.
05-01-2015
POSSES & CHASAN CPA's, PLLC, Appellant, v. Adele CHAVARRIA and Guillermo Chavarria, Respondents.
Opinion
ORDERED that the order is reversed, without costs, and defendants' motion to vacate the default judgment is denied.
Plaintiff commenced this action alleging, among other things, that it had prepared income tax returns and handled insurance audits for defendants Adele Chavarria and Guillermo Chavarria for the agreed upon price of $13,625, which sum defendants had refused to pay. According to the affidavits of service, the process server served defendant Guillermo Chavarria by handing the summons and complaint to him at his residence at 80 Forbell Street, Brooklyn, New York. The process server served defendant Adele Chavarria by handing the summons and complaint to Guillermo Chavarria, a person of suitable age and discretion, at Adele Chavarria's residence at 80 Forbell Street, Brooklyn, New York. The process server thereafter mailed a copy of the summons and complaint to each defendant at this address. Defendants failed to appear or answer, and a default judgment in the sum of $14,460.28 was entered against them.
In support of defendants' motion to vacate the default judgment, Guillermo Chavarria submitted an affidavit wherein he stated that he had not been properly served, as his business is located at 21–24 Jackson Ave., Long Island City, New York and he was “never served ... at this address.” Mr. Chavarria further stated that he has a meritorious defense to the action. In opposition, plaintiff submitted the affidavits of service of process, which attested to service upon each defendant. In his reply affirmation, defense counsel, without providing a physical description of Guillermo Chavarria, asserted that the physical description of Guillermo Chavarria as set forth in the affidavits of service does not match that of his client, since Guillermo Chavarria does not have brown skin, is not 5'7?, is not 215 pounds and does not have black hair. Counsel further stated that since plaintiff contracted with Guillermo in his corporate name, “Chavarria Consulting,” Guillermo and his wife are not proper parties to this action.
The Civil Court, without ordering a traverse hearing, granted defendants' motion.
A process server's affidavit of service constitutes prima facie evidence of proper service (see Associates First Capital Corp. v. Wiggins, 75 AD3d 614 [2010] ; Scarano v. Scarano, 63 AD3d 716 [2009] ). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing ... no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits' “ (Scarano v. Scarano, 63 AD3d at 716, quoting Simonds v. Grobman, 277 A.D.2d 369, 370 [2000] ; see Associates First Capital Corp. v. Wiggins, 75 AD3d at 614 ; City of New York v. Miller, 72 AD3d 726 [2010] ).
Guillermo Chavarria's denial of service at 21–24 Jackson Avenue does not rebut the process server's affidavits of service, which set forth that process was personally delivered to him at 80 Forbell Street. Thus, Guillermo Chavarria's affidavit was insufficient to rebut the prima facie proof of proper service created by the process server's affidavits. Consequently, the Civil Court should have denied defendants' motion to vacate the default judgment (see City of New York v. Miller, 72 AD3d 726 ; Scarano v. Scarano, 63 AD3d 716 ; Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 AD3d 983 [2008] ; 425 E. 26th St. Owners Corp. v. Beaton, 50 AD3d 845 [2008] ; Simonds v. Grobman, 277 A.D.2d 369 ).
Accordingly, the order is reversed and defendants' motion to vacate the default judgment is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.