NYCTL 2012-A Trust v. Colbert , 146 A.D.3d 482 ( 2017 )

NYCTL 2012-A Trust v Colbert (2017 NY Slip Op 00114)

NYCTL 2012-A Trust v Colbert

2017 NY Slip Op 00114

Decided on January 10, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 10, 2017
Tom, J.P., Richter, Saxe, Gische, Gesmer, JJ.

301863/13 2692 2691

[*1]NYCTL 2012-A Trust, et al., Plaintiffs-Respondents,

v

Jack M. Colbert, Defendant-Appellant, New York State Department of Taxation and Finance, et al., Defendants.

Gerard J. White, P.C., Glendale (Gerard J. White of counsel), for appellant.

Windels Marx Lane & Mittendorf, LLP, New York (Stephanie A. LaPerle of counsel), for respondents.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 7, 2015, granting plaintiffs' motion for a judgment of foreclosure and sale of the subject property in satisfaction of an underlying tax lien, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded to Supreme Court for a traverse hearing and further proceedings consistent with the determination rendered after such hearing.

The affidavits of plaintiffs' process server describing defendant as the person who accepted service of the summons, complaint, and notice of pendency, constituted prima facie evidence of proper service (see Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Wells Fargo Bank, NA v Edwards, 95 AD3d 692 [1st Dept 2012]).

In opposition, however, defendant's affidavit sufficiently rebutted the presumption of service established by the process server because he specifically denied receipt of service insofar as his medical condition rendered him unable to accept service at the times claimed by plaintiffs. Moreover, discrepancies between defendant's stated appearance and the descriptions provided by the process server of the person he served also raised an issue of fact as to whether defendant was personally served (see NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]; compare Reem Contr. v Altschul & Altschul, 117 AD3d 583, 584 [1st Dept 2014]; Grinshpun, 100 AD3d at 552). In light of these factual disputes, the court erred in granting the motion for a judgment of foreclosure without first resolving the threshold issue of personal service with a traverse hearing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 10, 2017

CLERK