On October 6, 2023, the Fourth Department issued a decision in L&W Supply Corp. v. Built-Rite Drywall Corp., 2023 NY Slip Op. 05079, holding that a motion to vacate a default judgment based on lack of personal jurisdiction does not require a showing of a reasonable excuse or a meritorious defense, explaining:
Where, as here, a defendant moves to vacate a judgment entered upon the defendant’s default in appearing or answering the complaint on the ground of lack of personal jurisdiction under CPLR 5015 (a) (4), the defendant is not required to demonstrate a reasonable excuse for the default and a potentially meritorious defense. Thus, contrary to the court’s determination, it is immaterial when defendant first learned of the judgment.
With respect to the merits, defendant contended in support of his motion that the court lacked personal jurisdiction over him because he was not properly served with the supplemental summons and amended complaint pursuant to CPLR 308 (4). Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served, but a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit. We agree with defendant that, by submitting uncontradicted evidence that the address listed in the affidavit of service does not exist, he overcame the presumption of proper service and created a genuine question whether the nail and mail service used here was effected in accordance with the statute.
We therefore reverse the order and remit the matter to Supreme Court to conduct a hearing on the issue whether service was properly effectuated and to determine defendant’s motion following the hearing. We note that, at the hearing on defendant’s motion, plaintiff is required to establish jurisdiction by a preponderance of the evidence.
(Internal quotations and citations omitted).