Johnson v. Deas

32 A.D.3d 253, 819 N.Y.S.2d 751

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 10, 2006
• Status: Published

Opinions

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 21, 2005, which, in a personal injury action, granted plaintiffs motion for a default judgment, reversed, on the law, without costs, the default vacated and the matter remanded for a traverse hearing.

The affidavit of service, filed on October 20, 2004, states that defendant was served that day by delivery of a true copy of the summons and complaint with a person of suitable age and discretion, identified as a relative, “Maria Deas,” at “defendant’s actual dwelling house — usual place of abode” at 310 East 102nd Street, apartment 5B, New York, NY 10029. The affidavit of service further states that a second copy was mailed to defendant at the aforementioned address that same day.

On July 5, 2005, plaintiff moved for a default judgment. On August 3, 2005, defendant’s counsel served a proposed answer to the complaint containing, inter alia, the defense of lack of personal jurisdiction, along with an affirmation in opposition to plaintiff’s motion asserting that defendant had a reasonable excuse for not answering the complaint in a timely fashion and a meritorious defense. Specifically, defendant’s counsel submitted a September 20, 2002 vacate order issued by the New York City Department of Buildings, a letter dated July 29, 2005 by the managing agent of the building, recent photographs of the padlocked building, and copies of envelopes addressed to the building marked “Return to Sender Vacant Unable to Forward” as evidence that the building has been continuously vacant since September 20, 2002. Additionally, given that the summons, complaint, request for judicial intervention, and motion papers all list defendant’s address as 318 East 100th Street, Apt. IB, New York, New York 10029, where plaintiff herself also lives, defendant claims that service upon him at the vacant 102nd Street building was intentional.

“In order to successfully oppose a [motion for] default judgment, a defendant must demonstrate a justifiable excuse for his default and a meritorious defense” (ICBC Broadcast Holdings-NY, Inc. v Prime Time Adv., Inc., 26 AD3d 239, 240 [2006]). However, where there is a defense of lack of personal jurisdiction, a defendant need not show a reasonable excuse and meritorious defense (see Ortiz v Santiago, 303 AD2d 1, 4 [2003]; European Am. Bank v Legum, 248 AD2d 206, 208 [1998]). While we agree with the dissent that the process server’s affidavit constitutes prima facie evidence of proper service pursuant to CPLR 308 (2), defendant rebutted this presumption with facts demonstrating that process could not have been effected at the address specified in the affidavit of service (see European Am. Bank & Trust Co. v Serota, 242 AD2d 363 [1997]). Where, as here, the documentary evidence raises issues of fact as to proper service, the absence of defendant’s sworn denial of service is not fatal. We also note defendant’s counsel’s affirmation that defendant still resides at 318 East 100th Street, New York, New York 10029 with plaintiff, which is based upon personal knowledge resulting from her own investigation, and also sufficient to warrant a traverse hearing. Concur — Saxe, J.R, Nardelli, Sweeny and Malone, JJ.