Practice point: The Supreme Court properly denied, without a hearing, that branch of defendant's motion, pursuant to CPLR 5015(a)(4), to vacate the judgment
of foreclosure and sale. The process server's affidavits of service
constituted prima facie evidence that the appellant was validly served
pursuant to CPLR 308(2) Since the appellant never denied the specific facts contained in
the process server's affidavit, no hearing was required.
Student note: Insofar as defendant moved pursuant to CPLR
5015(a)(1) to vacate her default, she failed to establish a reasonable
excuse since the only excuse proffered was that was not served with process.
Similarly, defendant was not entitled to relief under CPLR
317 since she failed to demonstrate that she did not receive actual
notice of the summons and complaint in time to defend. The mere denial of receipt of the summons and complaint does not .establish lack of actual notice for the purpose of
CPLR 317.
Case: Bank of N.Y. v. Samuels, NY Slip Op 03858 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Breach of fiduciary duty and the business judgment rule.
