On July 31, 2024, the Second Department issued a decision in Wells Fargo Vendor Fin. Servs., LLC v. Elslawy, 2024 NY Slip Op. 04099, holding that a defendant’s confusion on whether he was being sued does not excuse a failure to answer, explaining:
The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor. The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff. A process server’s affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service will not suffice to rebut a prima facie claim of proper service.
Here, affidavits of service filed by the plaintiff contained averments that service upon Masood was made by serving him personally at his residence and service upon Tahir was made by leaving the summons and complaint with a person of suitable age and discretion at his residence, followed by mailing copy to him at the same address. In support of their motion, the Bhuttas each submitted an affidavit. The Bhuttas did not deny receipt of process, but instead, averred that the appellation “D/B/A,” meaning “doing business as,” which appeared after each of their names in the caption, led them to believe that they were not being sued in their individual capacities. As the Supreme Court properly determined, the Bhuttas’ confusion with regard to the caption was insufficient to rebut the plaintiff’s prima facie showing of proper service on them. Accordingly, the Bhuttas failed to establish their entitlement to vacatur pursuant to CPLR 5015(a)(4).
Likewise, we find no reason to disturb the Supreme Court’s determination that the Bhuttas’ confusion regarding whether they were being sued individually or on behalf of their corporation did not warrant discretionary vacatur pursuant to CPLR 5015(a)(1) or in the interest of substantial justice.
(Internal quotations and citations omitted).