You are here: / / MOTION TO VACATE DEFAULT JUDGMENT OF FORECLOSURE WAS SUPPORTED BY A SWORN...
,

MOTION TO VACATE DEFAULT JUDGMENT OF FORECLOSURE WAS SUPPORTED BY A SWORN DENIAL OF SERVICE AND SPECIFIC FACTS WHICH REBUTTED THE PRESUMPTION OF PROPER SERVICE, MATTER SENT BACK FOR A HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendant’s motion to vacate his default in this foreclosure action should not have been denied without a hearing to determine whether he was served. Defendant’s motion was supported by a sworn denial of service and specific facts, which was sufficient to rebut the presumption of proper service:

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” … . To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server’s affidavit of service … . “Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing” … . A determination as to whether service was properly made pursuant to CPLR 308(1), as here, turns on issues of credibility, which should be determined by a hearing … . Federal Natl. Mtge. Assn. v Alverado, 2018 NY Slip Op 08918, Second Dept 12-26-18

 

You might also like
HERE THE PARTY WHO WAS AWARDED COSTS ON APPEAL WAS ENTITLED TO REIMBURSEMENT OF THE COST OF PROCURING THE TRANSCRIPTS FOR THE RECORD ON APPEAL (SECOND DEPT).
DEFENDANT HAD PLED GUILTY TO SCALDING A DISABLED CHILD BY BATHING HER IN WATER THAT WAS TOO HOT, AT THE SUBSEQUENT CIVIL TRIAL DEFENDANT WAS ALLOWED TO CROSS-EXAMINE PLAINTIFF’S EXPERTS ABOUT THE EVIDENCE THAT THE CHILD SUFFERED AN ALLERGIC REACTION AND HAD NOT BEEN SCALDED, THE DEFENSE VERDICT WAS AFFIRMED, PLAINTIFF’S MOTION IN LIMINE REQUESTING THAT THE GUILTY PLEA BE GIVEN COLLATERAL ESTOPPEL EFFECT AND THAT THE PLAINTIFF BE PRECLUDED FROM PRESENTING EVIDENCE OF THE ALLERGIC REACTION WAS ACTUALLY AN UNTIMELY SUMMARY JUDGMENT MOTION, DESPITE SUPREME COURT’S GRANTING OF THE MOTION, THE DEFENSE VERDICT MAKES ANY FURTHER CONSIDERATION OF THE ERROR UNNECESSARY (SECOND DEPT).
PLEADING REQUIREMENTS FOR A LAUNDRY LIST OF FRAUD-RELATED CAUSES OF ACTION SUCCINCTLY ILLUSTRATED.
THE PROOF OF THE AMOUNT DUE PURSUANT TO THE MORTGAGE WAS NOT SUPPORTED BY THE RELEVANT BUSINESS RECORDS; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
FRIVOLOUS DEMAND FOR PUNITIVE DAMAGES IN PROPERTY-INJURY CASE WARRANTED AWARD PURSUANT TO CPLR 8303-a.
PROPER VENUE FOR TWO LAWSUITS JOINED FOR TRIAL IS THE COUNTY WHERE THE FIRST LAWSUIT WAS FILED.
Duty to Defend Broader than Duty to Indemnify.
Questions of Fact Raised About Whether the Risks of Participating in a Self-Defense Tournament Were Concealed and Unreasonably Increased and Whether Infant Plaintiff Was Negligently Supervised

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

INDICATING INCONSISTENT DECISIONS SHOULD NO LONGER BE FOLLOWED, THE SECOND DEPT... THERE WAS NO PROPER FOUNDATION FOR THE DEFENSE EXPERT’S TESTIMONY IN THIS...