Personal Jurisdiction and the Vacatur of Defaults

• Posted on: May 3 2024

By Jonathan H. Freiberger

There are two “components and constitutional predicates of personal jurisdiction.”  Keane v. Kamin, 94 N.Y.2d 263, 265 (1999). “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.” Keane, 94 N.Y.2d at 265 (citations omitted).¹ The law is clear that a “court lacks personal jurisdiction over a defendant who is not properly served with process.” Everbank v. Kelly, 203 A.D.3d 138, 142 (2^nd Dep’t 2022) (citations omitted); see also Castillo-Florez v. Charlecius, 220 A.D.3d 1, 2 (2^nd Dep’t 2023) (same). “When it is determined that process was ineffective, all subsequent proceedings are rendered null and void as to that party.” Everbank, 203 A.D.3d at 143 (citations omitted); see also Federal Nat. Mort. Ass’n v. Smith, 219 A.D.3d 938, 941-42 (2^nd Dep’t 2023) (citations and internal quotation marks omitted).

“‘Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308.’” Federal Nat. Mort. Ass’n v. Smith, 219 A.D.3d 938, 941-42 (2^nd Dep’t 2023) (quoting Everbank, supra) (some citations omitted, hyperlink added); see also Castillo-Florez, 220 A.D.3d at 2 (citations omitted). When a judgment or order is issued against a party that has not been properly served with process, it will be vacated. Generally, to vacate a default, the moving party must demonstrate a “reasonable excuse for the default and a meritorious defense to the action.” Liu v. Chang, 2024 WL 1915013 (1^st Dep’t May 2, 2024); see also Wells Fargo Bank, N.A. v. Senenfelder, 225 A.D.3d 728 (2^nd Dep’t 2024)². CPLR 5015(a) provides several bases upon which a party may move to vacate a judgment or order. One such basis, related to today’s article, is found in CPLR 5015(a)(4), which provides, in pertinent part, that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of … lack of jurisdiction to render the judgment or order.”  See Bank of America v. Lewis, 190 A.D.3d 910, 910-11 (2^nd Dep’t 2021). The Second Department has held that, pursuant to CPLR 5015(a)(4), a “default must be vacated once the movant demonstrates a lack of personal jurisdiction, and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense.” Wells Fargo Bank, N.A. v. Spaulding, 177 A.D.3d 817, 818 (2019) (citations omitted) (emphasis added). See also Rabinowitz v. Rabinowitz, 137 A.D.3d 884, 885 (2^nd Dep’t 2016) (citations and internal quotation marks omitted). 

A “process server’s affidavit of service gives rise to a presumption of proper service.”  Deutsche Bank National Trust Co. v. Stolzberg, 165 A.D.3d 624, 625 (2^nd Dep’t 2018) (citations and internal quotation marks omitted). “To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server’s affidavit of service.” Lewis, 190 A.D.3d. at 911 (citations and internal quotation marks omitted). Further, while “[b]are and unsubstantiated denials are insufficient to rebut the presumption,” “a sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit will defeat the presumption of proper service.” Stolzberg, 165 A.D.3d at 625 (citations, internal quotation marks and brackets omitted). For example, the Second Department, in Castillo-Florez, held that the defendant’s sworn affidavit “in which he, inter alia, denied receipt of service, denied residing at the [service] address at the time service allegedly was made, and set forth the location of his address at the time of service,” was sufficient to rebut the presumption of service. Castillo-Florez, 220 A.D.3d at 14 (citations omitted); see also Lewis, 190 A.D.3d at 915 (finding the presumption rebutted where defendant averred that he did not reside at the service address and annexed to his affidavit copies of tax records indicating he lived elsewhere). 

On May 1, 2024, the Appellate Division, Second Department, addressed service of process issues in 115 Essex Street, LLC v. Tenth Ward, LLC. 115 Essex was a breach of contract action in which the defendant defaulted in responding to the complaint. The motion court granted plaintiff’s motion for leave to enter a default judgment pursuant to CPLR 3215.³ Thereafter the defendant moved pursuant to, inter alia, CPLR 5015(a) to vacate the default judgment. The motion court denied the motion. On the defendant’s motion for reargument, the motion court granted the motion but adhered to its original decision. 

On the defendant’s appeal, the Second Department reversed and, in so doing, the Court noted that when “a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1).” (Citations and internal quotation marks omitted.) After discussing available relief under CPLR 5015(a)(4), the Court recognized that the “failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.” (Citations and internal quotation marks omitted.)

The Court, in explaining its rationale for reversing the motion court, stated:

Here, the Supreme Court erred in determining the defendant’s motion, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the judgment insofar as entered against him without first conducting a hearing, as the defendant demonstrated his entitlement to a hearing on the issue of service. The process server’s affidavit of service established, prima facie, that the defendant was served pursuant to CPLR 308(2) by delivery of the summons and complaint to “John Doe, Worker,” a person of suitable age and discretion at the defendant’s actual place of business, and by mailing a copy of the summons and complaint to the defendant at his actual place of business. However, the defendant successfully rebutted the process server’s affidavit through his specific averments, inter alia, denying receipt of service, asserting that his actual place of business is not “opened to the general public,” that he “did not have employees working for [him]” at the time of service and was “the only one working there,” and by pointing to significant discrepancies between the process server’s physical description of John Doe and the defendant’s actual physical appearance. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the defendant was properly served with process and for a new determination thereafter of the defendant’s motion, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the judgment insofar as entered against him. [Citations and internal quotation marks omitted.]

Footnotes

1. Eds. Note: this BLOG has addressed various issues related to service of process, inter alia, [here], [here], [here], [here] and [here].
2. Eds. Note: this BLOG has addressed default judgments, inter alia, [here], [here], [here] and [here].
3. Eds. Note: this BLOG has addressed various issues under CPLR 3215, inter alia, [here], [here], [here], [here] and [here].

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.