Wilmington Trust, N.A. v. Delfeus

Summary

The Appellate Division, Second Department, affirmed the denial of Fabius Delfeus's motion to vacate a foreclosure judgment and dismiss the action for lack of personal jurisdiction. The court held that the process server's affidavits established a presumption of proper service under CPLR 308(2), which Delfeus failed to rebut with sufficiently specific evidence.

Holdings

1. The process-server affidavits established a prima facie case of proper service because they stated that the summons and papers were delivered to a person of suitable age and discretion at the defendant's premises and mailed to the same address.
2. Delfeus did not rebut the presumption of proper service because neither he nor his son specifically denied that the son matched the description in the service affidavit, and Delfeus's assertions were conclusory and unsubstantiated.
3. The Supreme Court properly denied the motion to vacate and dismiss because Delfeus failed to establish that service was defective or that the court lacked personal jurisdiction.
4. A service hearing was not required because Delfeus failed to rebut the presumption of proper service with a detailed and specific sworn denial.

Questions Presented

1. Whether Delfeus demonstrated lack of personal jurisdiction by overcoming the presumption of proper service created by the process server's affidavits.
2. Whether the Supreme Court properly denied Delfeus's motion under CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and under CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
3. Whether the defendant's remaining contention could be considered on appeal after being raised for the first time.

Disposition

affirmed