Opinion
2012-03-13
TOYOTA MOTOR CREDIT CORPORATION, respondent, v. HARDWARE LAM, defendant,Anna Gansburg, appellant.
Bronstein, Gewirtz & Grossman, LLC, New York, N.Y. (Edward N. Gewirtz of counsel), for appellant. Rubin & Rothman, LLC, Islandia, N.Y. (Elizabeth T. Vrachnas of counsel), for respondent.
Bronstein, Gewirtz & Grossman, LLC, New York, N.Y. (Edward N. Gewirtz of counsel), for appellant. Rubin & Rothman, LLC, Islandia, N.Y. (Elizabeth T. Vrachnas of counsel), for respondent.
In an action to recover damages for breach of a lease, the defendant Anna Gansburg appeals from an order of the Supreme Court, Rockland County (Weiner, J.), dated April 11, 2011, which denied her motion pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court entered September 10, 2010, upon her default in appearing or answering the complaint, pursuant to CPLR 2004 for leave to serve a late answer, pursuant to CPLR 510 to transfer venue of the action to Kings County, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Rockland County, for a hearing to determine whether the defendant Anna Gansburg was properly served with process, and for a new determination of the motion thereafter.
Under CPLR 5015(a)(4), a default must be vacated once a movant demonstrates lack of personal jurisdiction ( see *870 Hossain v. Fab Cab Corp., 57 A.D.3d 484, 868 N.Y.S.2d 746; Matter of Qadeera Tonezia D., 55 A.D.3d 606, 866 N.Y.S.2d 223). A party who moves to vacate a judgment entered on default is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense when lack of personal jurisdiction is asserted as the ground for vacatur ( see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d 1074, 899 N.Y.S.2d 269; Harkless v. Reid, 23 A.D.3d 622, 622–623, 806 N.Y.S.2d 214).
While “[a] process server's sworn affidavit of service ordinarily constitutes prima facie evidence of proper service” ( Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343–344, 756 N.Y.S.2d 92; see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d at 1074, 899 N.Y.S.2d 269), where “there is a sworn denial that delivery to the defendant was accomplished, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing” ( Bankers Trust Co. of Cal., v. Tsoukas, 303 A.D.2d at 344, 756 N.Y.S.2d 92; see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d at 1074–1075, 899 N.Y.S.2d 269; Wern v. D'Alessandro, 219 A.D.2d 646, 631 N.Y.S.2d 425; Frankel v. Schilling, 149 A.D.2d 657, 540 N.Y.S.2d 469). Here, the defendant Anna Gansburg (hereinafter the defendant) stated in an affidavit that she did not reside at the address where copies of the summons and complaint were left by the process server, and submitted documents in support of her allegation that she resided elsewhere. Accordingly, a hearing is required to determine whether the defendant was properly served. Thus, the matter must be remitted to the Supreme Court, Rockland County, for such a hearing and a new determination of the defendant's motion thereafter.