In N* Mortgage LLC v. O'C*, decided by the Appellate Division, First Department on October 23, 2025, the court addressed whether a judgment of foreclosure and sale, along with an order of reference, should be vacated due to issues surrounding service of process and personal jurisdiction.
The defendant, O'C* moved under CPLR 5015(a)(1) and (a)(4) to vacate the judgment and order, arguing that she had not been properly served and that she had not authorized an attorney to appear on her behalf. The Supreme Court, Bronx County, denied her motion, prompting an appeal.
The Appellate Division reversed the lower court’s decision and remanded the matter for a traverse hearing. The court found that although the plaintiff had submitted affidavits of service indicating that O'C* was served at her place of business and residence, those affidavits merely created a presumption of proper service. O'C* successfully rebutted that presumption by submitting affidavits from a coworker and her daughter. The coworker stated that the person served was not employed at O'C*’s workplace, and the daughter asserted that the address used was her own home, not O'C*’s, and that no service attempts occurred on the dates claimed in the process server’s affidavit.
Additionally, the court found that there was a legitimate question as to whether O'C* had appeared in the action through counsel. An attorney named MKK had filed opposition papers on her behalf, but O'C* swore in an affidavit that she had never retained him or any attorney to represent her in the foreclosure case. This raised a factual issue requiring a hearing to determine whether the attorney's appearance was authorized.
Because the court concluded that a hearing was necessary to resolve the jurisdictional issues under CPLR 5015(a)(4), it declined to address whether relief was also warranted under CPLR 5015(a)(1), which concerns excusable default.
The decision underscores the importance of proper service and the need for courts to carefully evaluate claims of unauthorized appearances. It also affirms that sworn affidavits rebutting service can be sufficient to warrant a traverse hearing, even when the plaintiff has presented facially valid affidavits of service.
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DECISION