By Rivera, J.P.; Balkin, Leventhal, Connolly, JJ. BANK OF AMERICA, NATIONAL ASSOCIATION, res, v. RADU TEODORESCU, ETC., app, ET AL., def — (Index No. 70482/12) Clair & Gjertsen, White Plains, NY (Ira S. Clair and Matthew W. Martin of counsel), for appellant. Parker Ibrahim & Berg LLP, New York, NY (Anthony Del Guercio and Karena J. Straub of counsel), for respondent. In an action to foreclose a mortgage, the defendant Radu Teodorescu appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated March 6, 2017. The order denied that defendant’s motion pursuant to CPLR 5015 to vacate an order and judgment of foreclosure and sale (one paper) of the same court (Mary H. Smith, J.) dated August 25, 2014, entered upon his default in answering or appearing. ORDERED that the order is affirmed, with costs. In 2012, the plaintiff commenced this action against the defendant Radu Teodorescu (hereinafter the defendant), among others, to foreclose a mortgage on real property located in Scarsdale. The defendant failed to timely appear or answer the complaint. By order dated June 17, 2014, the plaintiff’s motion, inter alia, for leave to enter a default judgment against the defendant and for an order of reference was granted. Upon the filing of the referee’s report, the plaintiff moved, on notice to the defendant, to confirm the report and for a judgment of foreclosure and sale. The defendant did not oppose the motion, which was granted by an order and judgment of foreclosure and sale dated August 25, 2014. In 2017, the defendant moved pursuant to CPLR 5015 to vacate the order and judgment of foreclosure and sale. The Supreme Court denied the motion, and the defendant appeals. The defendant argues that his default in appearing or answering the complaint should be vacated because he was not properly served with the summons and complaint. Contrary to the defendant’s contention, however, a single, minor discrepancy between the defendant’s alleged appearance and the description of the defendant provided by the process server was insufficient to raise an issue of fact warranting a hearing to determine the propriety of service (see US Bank N.A. v. Cherubin, 141 AD3d 514, 515). Moreover, such “discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect” (id. at 516). Here, the defendant failed to substantiate the alleged discrepancy in his appearance. To the extent that the defendant sought to vacate his default pursuant to CPLR 5015(a)(1), he failed to establish a reasonable excuse for his default, since the only excuse proffered was that he was not served with process (see West Coast Servicing, Inc. v. Yusupova, 172 AD3d 789, 790). Since the defendant failed to establish a reasonable excuse for his default in answering the complaint, it is unnecessary to consider whether he established the existence of a potentially meritorious defense, including lack of standing or failure to comply with RPAPL 1304 (see Bank of N.Y. Mellon v. Lawson, 176 AD3d 1155, 1156; West Coast Servicing, Inc. v. Yusupova, 172 AD3d at 790; Aurora Loan Servs., LLC v. Movtady, 165 AD3d 1025, 1027). Finally, the defendant was not entitled to vacatur of the order and judgment of foreclosure and sale based upon his contentions regarding the referee’s report, as he failed to offer any excuse for his default in opposing the plaintiff’s motion to confirm the referee’s report and for a judgment of foreclosure and sale (see HSBC Bank USA, N.A. v. Frank, 175 AD3d 627, 628). RIVERA, J.P., BALKIN, LEVENTHAL and CONNOLLY, JJ., concur.
By Chambers, J.P.; Leventhal, Nelson, Wooten, JJ. KIM TURNER, ET AL., app, v. GEORGE SIDERIS, ETC., res — (Index No. 9565/15) Berkowitz & Weitz, P.C., New York, NY (Andrew D. Weitz of counsel), for appellants. Chartwell Law Offices, LLP, New York, NY (Jack Gross of counsel), for respondent. In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered February 11, 2019. The order, after a hearing to determine the validity of service of process, granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. ORDERED that the order is affirmed, with costs. The plaintiffs commenced this action, among other things, to recover damages for personal injuries. The defendant cross-moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. Following a hearing to determine the validity of service of process, the Supreme Court granted that branch of the defendant’s cross motion. The plaintiffs appeal. Contrary to the plaintiffs’ contention, a hearing was necessary to determine whether service was validly effected. Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, thus, gives rise to a presumption of proper service (see HMC Assets, LLC v. Dhanani, 173 AD3d 700, 701). However, a sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit generally rebuts the presumption of proper service and necessitates a hearing (see Federal Natl. Mtge. Assn. v. Alverado, 167 AD3d 987, 988; Deutsche Bank Natl. Trust Co. v. Stolzberg, 165 AD3d 624, 625). In this case, the affidavits submitted by the defendant rebutted the presumption of proper service and necessitated a hearing on the issue of service. “At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence” (Godwin v. Upper Room Baptist Church, 175 AD3d 1500, 1501). In reviewing a determination made after a hearing, the power of this Court is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499; Jhang v. Nassau Univ. Med. Ctr., 140 AD3d 1018, 1019). Here, we agree with the Supreme Court’s determination, based in part on its assessment of witness credibility, that the plaintiffs failed to meet their burden at the hearing. The plaintiffs’ remaining contentions do not warrant a contrary result. Accordingly, we agree with the Supreme Court’s determination granting that branch of the defendant’s cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. CHAMBERS, J.P., LEVENTHAL, BRATHWAITE NELSON and WOOTEN, JJ., concur.
