Summary
The Appellate Division, Second Department, affirmed an order denying Lisa Iannacci Manasia's motion to vacate a judgment of foreclosure and sale and to dismiss the foreclosure complaint for lack of personal jurisdiction. The court held that she failed to rebut the presumption of proper service, lacked entitlement to relief under CPLR 317, and did not establish a potentially meritorious defense.
Topics
Practice areas
Questions Presented
- Whether the defendant rebutted the presumption of proper service created by the process server's affidavit so as to require an evidentiary hearing.
- Whether the defendant was entitled under CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale for lack of personal jurisdiction.
- Whether the defendant was entitled under CPLR 3211(a)(8) to dismissal of the complaint for lack of personal jurisdiction.
- Whether the defendant was entitled to relief under CPLR 317 after admitting that she had actual notice of the summons in time to defend and failing to demonstrate a potentially meritorious defense.
Holdings
- The defendant failed to rebut the presumption of proper service established by the process server's affidavit, and the alleged discrepancies concerning the description of the person served did not require an evidentiary hearing.
- Because the defendant failed to rebut the presumption that she was properly served, the Supreme Court properly denied, without a hearing, her requests under CPLR 5015(a)(4) to vacate the judgment and CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
- The defendant was not entitled to relief under CPLR 317 because she admitted having actual notice of the summons in time to defend and failed to demonstrate a potentially meritorious defense.
Factual background
Anthony and Lisa Iannacci Manasia executed a note secured by a mortgage on residential property. After U.S. Bank Trust commenced foreclosure proceedings, a process server averred that he served Lisa under CPLR 308(2) by delivering the summons and complaint to Anthony, a person of suitable age and discretion at Lisa's residence, and mailing a second copy to that address. Lisa challenged service, but did not substantiate alleged discrepancies between Anthony's appearance and the process server's description, and admitted that she had actual notice of the summons in time to defend.
Procedural history
U.S. Bank Trust commenced a mortgage foreclosure action. Anthony Manasia answered, and a judgment of foreclosure and sale was entered. Lisa Iannacci Manasia later moved under CPLR 317 and 5015(a)(3) and (4) to vacate the judgment and under CPLR 3211(a)(8) to dismiss the complaint against her for lack of personal jurisdiction. The Supreme Court, Nassau County, denied the motion, and the Appellate Division affirmed insofar as appealed from.