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A DEFENDANT WHO MOVES TO VACATE A DEFAULT JUDGMENT FOR LACK OF PERSONAL JURISDICTION DOES NOT NEED TO DEMONSTRATE A REASONABLE EXCUSE FOR THE DEFAULT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the motion to vacate a default judgment for lack of personal jurisdiction should not have been treated as a motion to vacate based on an excusable default. The defendant raised a question of fact about whether he was properly served by demonstrating the address at issue did not exist. There was no requirement that defendant demonstrate a reasonable excuse:

Where, as here, a defendant moves to vacate a judgment entered upon [the defendant’s] default in appearing or answering the complaint on the ground of lack of personal jurisdiction [under CPLR 5015 (a) (4)], the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense” … . Thus, contrary to the court’s determination, it is immaterial when defendant first learned of the judgment.

With respect to the merits, defendant contended in support of his motion that the court lacked personal jurisdiction over him because he was not properly served with the supplemental summons and amended complaint pursuant to CPLR 308 (4) (see CPLR 5015 [a] [4]). “Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served[, but] . . . a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit” … . We agree with defendant that, by submitting uncontradicted evidence that the address listed in the affidavit of service does not exist, he overcame the presumption of proper service and created “a genuine question” whether the “nail and mail” service used here was effected in accordance with the statute … . L&W Supply Corp. v Built-Rite Drywall Corp., 2023 NY Slip Op 05079, Fourth Dept 10-6-23

Practice Point: Here defendant was purportedly served by “nail and mail.” Defendant demonstrated the address in the affidavit of service did not exist. Therefore defendant was entitled to a hearing. There was no need for defendant to demonstrate a reasonable excuse for the default.

 

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