Williams v. Williams

Williams v Williams 2024 NY Slip Op 31577(U) May 2, 2024 Supreme Court, Kings County Docket Number: Index No. 516390/2022 Judge: Ingrid Joseph Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication. ------------~~-.=-._---~~-----:---- - FILED: KINGS COUNTY CLERK 05/03/2024 09:40 AM NYSCEF DOC. NO. 120 INDEX NO. 516390/2022 RECEIVED NYSCEF: 05/03/2024

At an IAS At lAS Term, Term, Part Part 83, of of the Supreme Supreme Court Court ofof the the State State of New York, of New York, held held in and . fo~ for the the County County ofof Kings, Kings, at the Courthouse, Courthouse, at Aja!\'s AjaJ1ls Street, Street, Brooklyn, New York, Brooklyn, New York, on th€~~~_dayof f{l~ th€ ~/;I.JUJ(~_day of M~ ,2024. ,2024.

PRESENT: PRESENT: HON.

HON. INGRID INGRID JOSEPH, JOSEPH, Justice.

Justice. -----------------------------------------------------------------------X -----------------------------------------------------------------------)( TANYA TANYA R. WILLIAMS, WILLIAMS, Plaintiff, Plaintiff, Index No. 516390/2022 Index No. 516390/2022 .,against- -against- RODNEY RODNEY WILLIAMS, WILLIAMS, DEBRA DEBRA ANN ANN PETTIE, PETTIE, LAUREN LAUREN PEYTON PEYTON GRAYES-MADDEN, GRA VES-MADDEN, THOMAS THOMAS DECISION DECISION & ORDER ORDER GRAYES, GRAVES, MICHAEL MICHAEL GRAYES, GRAVES, JERRY JERRY GRAYES, GRAVES, RAY RAY GRAYES, GRAVES, BARRY BARRY GRAYES, GRAVES, HAMONICA HAMONICA CLARK, CLARK, LATASHA LATASHA CLARK, CLARK, WILLIAM WILLIAM ALLEN ALLEN GRAYES, GRAVES, JR., GREGORY GREGORY GRAYES, GRAVES, JOYCE JOYCE GRAYES-HATCHER, GRAVES-HATCHER, GEORGE GEORGE GRAYES,.

GRAVES, JR., TAMMY NASH, JESSICA TAMMY NASH, JESSICA GRAYES, GRAVES, JASMINE JASMINE GRAYES, GRAVES, TAMARA TAMARA GRAYES, GRAVES, DEBRA DEBRA J. GRAYES, GRAVES, and DOROTHY DOROTHY GIBSON GIBSON COWAN, COWAN, Defendants.

Defendants. -------------------------------.--------------------------. ------------X ----------------------------------------------------------~------------)( The following following e-filed e-filed pap·ers pap.ers read read herein: herein: NYSCEF Doc NYSCEF Nos ..

Doc Nos. Mot.

Mot. Seq.

Seq. No. NO.33 Order Order to Show Show Cause/ Affirmation/Exhibits............................... ·.66 Cause/Affirmation/Exhibits............. 66 --75, 75, 79 Affidavit Affidavit in Opposition . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . 80 Opposition..........................

Mot.

Mot. Seq.

Seq. No. No.44 Notice of Notice of Cross-Motion/ Cross-Motion/ Affirmation/ Affidavits/Exhibits ...... .' ....... .

Affirmation/Affidavits/Exhibits 81 - 114 Affirmation Opposition ........ :~......................................... .

Affirmation in Opposition 116 ..

Affirmation Reply ....... , ..................................................

Affirmation in Reply '.' '.' . 117 This This action action concerns concerns a property property located located at 368 Monroe Monroe Street Street in Brooklyn, New York Brooklyn, New York (the "Property"). "Property"). In her her complaint, complaint, Plaintiff Plaintiff Tanya Tanya R. Williams Williams alleged alleged that that in addition addition to herself, herself, 20 other other individuals individuals owned owned an interest interest in the Property.

Property. These These other other individuals individuals were were named named as

, of 4 ' [* 1] JJ FILED: KINGS COUNTY CLERK 05/03/2024 09:40 AM INDEX NO. 516390/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/03/2024 defendants. defendants. Plaintiff Plaintiff asserted asserted two of action causes of two causes partition and action for a partition division of and division Property and the Property of the accounting. In a Judgment an accounting. Partition and Sale dated of Partition Judgment of July 14, dated July 14,2023, this Court 2023, this Court determined that determined that the property property should sold at a public should be sold and that auction and public auction certain sums that certain from the sums from distributed sale be distributed the sale on a pro rata rata basis basis to the the parties parties according according to their their ownership this order, interests. 1 In this ownership interests.) Court this Court order, this also determined that defendant determined that defendant Rodney Williams ("Mr. Rodney Williams Williams") defaulted ("Mr. Williams") failing to defaulted by failing interpose answer to the interpose an answer complaint.2 2 the complaint.

Mr. Williams Williams now now moves moves by order order to show show cause staying the order (i) staying cause for an order of the the sale of Property Property and (b) vacating Judgment of vacating the Judgment of Partition that he was ground that Partition and Sale on the ground never was never served served with with process process and and accordingly, the Court accordingly, the lacks jurisdiction Court lacks over him. jurisdiction over dated affidavit dated him. In his affidavit October October 18,2023, 18, 2023, Mr. Williams Williams alleges alleges that was never that he was with the summons served with never served complaint and complaint summons and and that that he was was at home home at the time of the date and time service (June alleged service of the alleged (June 20, 8:19PM) and 2022, 8:19PM) 20, 2022, prior prior attempted attempted service service (June 2022, 8:04PM) (June 16, 2022, 8:04PM) and thus, substitute and thus, service was substitute service necessary. not necessary. was not Mr. Williams Williams further further alleges alleges that the process that the server could process server not have could not taped the have taped and summons and the summons complaint to the door complaint door because door is a steel because the door bar door. In addition, steel bar Williams avers addition, Mr. Williams that he avers that never never received received a copy copy of of the the complaint complaint by mail and had no knowledge and had of the knowledge of Defendant lawsuit. Defendant the lawsuit.

Debra Debra J. Graves Graves ("Ms. ("Ms. Graves") Graves") submitted submitted an affidavit stating that opposition, stating affidavit in opposition, served was served that she was at the same same time Williams. Ms. Graves, time as Mr. Williams. lives in the same Graves, who lives same building Williams, building as Mr. Williams, avers avers that that four four copies copies of the pleadings of the were taped pleadings were the front taped to the door, one front door, of which one of outside which she left outside of of Mr. Mr._ Williams' Williams' residence residence and and later observed him later observed taking inside. him taking Graves further inside. Ms. Graves that states that further states copies of copies of the pleadings mailed. were mailed. pleadings were In response, response, Plaintiff cross-motion seeking Plaintiff filed a cross-motion seeking the following relief: the following sanctions, relief: (a) sanctions, attorneys attorneys fees and and referee's related to Mr. Williams' referee's fees related allegedly frivolous Williams' allegedly motion; (b) frivolous motion; reimbursement reimbursement by Mr. Williams Williams for the prospective re-publishing of prospective re-publishing of the Notice of Sale; (c) Notice of reimbursement reimbursement by Mr. Williams Williams for all real estate taxes and water estate taxes that have charges that water charges accrued and have accrued continue continue to accrue accrue as against against the the Property Property since obtained a stay since he obtained of the stay of public auction the public payment (d) payment auction (d) by Mr. Williams of any and all rent Williams of rent received occupants of him from occupants received by him of the Property since the date Property since of of the scheduled scheduled auction auction (Mot. No. 4). In her motion, (Mot. Seq. No.4). argues that Plaintiff argues motion, Plaintiff Williams was that Mr. Williams

FILED: KINGS COUNTY CLERK 05/03/2024 09:40 AM INDEX NO. 516390/2022 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/03/2024 properly served properly with not served with not only only the summons summons and complaint, but also with complaint, but with court notices, motions, court notices, motions, the judgment notice of judgment and notice of sale. Moreover, Plaintiff contends Moreover, Plaintiff that Mr. Williams' contends that Williams' statement statement that that he knew knew nothing nothing of this litigation of this litigation is belied belied by the affidavits affidavits of of Plaintiff Plaintiff and Ms. Graves, Graves, in which which they both they both assert assert that that they they, discussed this matter discussed this matter with him. Thus, Thus, Plaintiff Plaintiff argues argues that that Mr. Williams Williams lacks credibility. lacks credibility.

In opposition opposition to the the cross-motion, cross-motion, Mr. Williams' Williams' counsel counsel asserts asserts that that his client client specifically specifically rebutted rebutted the affidavit affidavit of the process of the process server. server. However, However, Mr. Williams Williams did not submit submit an affidavit affidavit in opposition. opposition.

In her reply, reply, Plaintiff Plaintiff argues argues that Williams' counsel's that Mr. Williams' counsel's affirmation must be disregarded affirmation must disregarded because because it contains contains statements statements of of fact. Plaintiff Plaintiff further further asserts asserts that that Mr. Williams' Williams' assertion assertion that the underlying papers underlying papers could not have could not been taped have been taped to the door belied by Ms. Graves' door is belied Graves' sworn sworn statement statement that the papers that papers were were affixed affixed to the steel door.

Generally, Generally, a defendant moving to vacate defendant moving vacate a default default in failing failing to answer answer the complaint must complaint must demonstrate demonstrate a reasonable reasonable excuse excuse for the default default and the existence existence of of a potentially potentially meritorious meritorious defense defense (CPLR (CPLR 5015 [a] [l]; Deutsche Bank [1]; Deutsche Bank Nat!.

Natl. Trust Co. v Geslani, Geslani, 222 AD3d AD3d 835, 837 [2d [2d' Dept 2023]).

Dept However, where 2023]). However, where a defendant moves to vacate defendant moves vacate under under CPLR CPLR 5015 (a) (4) for lack of of jurisdiction, he or she does jurisdiction, does not have have to establish establish an excusable excusable default default or meritorious defense (Shaw meritorious defense (Shaw v Shaw, Shaw, 97 AD2d AD2d 403,403 403,403 [2d Dept Dime Sav. Bank Dept 1983]; Dime Bank of of Williamsburg Ross Realty, Williamsburg v 146 Ross Realty, LLC, 106 AD3d AD3d 863, 864 [2d Dept Dept 2013]).

2013]). Instead, the "defendant Instead, must overcome "defendant must overcome the presumption raised presumption process server's raised by the process server's affidavit affidavit of service" (Machovec of service" (Machovec v Svoboda, Svoboda, 120 AD3d AD3d 772, 773 [2d Dept Dept 2014 ]). "While 2014]). bare and unsubstantiated "While bare unsubstantiated denials denials are insufficient insufficient to rebut rebut the presumption of presumption of service, service, a sworn sworn denial denial of of service service containing containing specific specific facts facts generally generally rebuts rebuts the the' presumption of presumption proper service of proper service established process server's established by the process server's affidavit affidavit and necessitates necessitates an evidentiary evidentiary hearing" Wachovia Bank, NA. hearing" ((Wachovia NA. v Greenberg, Greenberg, 13 1388 AD3d AD3d 984, 984, 985 [2d Dept Dept 2016] [internal [internal citations citations omitted]). omitted]).

Here, Here, the process process server's affidavit of server's affidavit of service service constitutes prima facie evidence constitutes prima evidence of proper of proper service service on Defendant Defendant under CPLR 308 (4) (Deutsche under CPLR Bank Natl. Trust (Deutsche Bank Trust Co. v Quinones, Quinones, 114 AD3d AD3d 719, 719 [2d Dept Dept 2014]).

2014]). Thus, Thus, Mr. Williams Williams is required required to provide provide an affidavit with a factually affidavit with factually specific specific and detailed rebuttal (see id). detailed rebuttal id). Mr. Williams' Williams' conclusory conclusory statement statement that that he never never received received service service either either by the papers being the papers being affixed affixed to the door door or mailed mailed is an insufficient insufficient rebuttal compare rebuttal ((compare Washington Bank v Huggins, Washington Mut. Bank Huggins, 140 AD3d AD3d 858, 859 [2d D~pt 2016] 2016] [a "conclusory "conclusory assertion assertion

3· 3'

Bank USA, NA.

HSBC Bank v Assouline, AD3d 603, Assouline, 177 AD3d 604-605 [2d Dept 603, 604-605 2019] [service Dept 2019] rebutted where [service rebutted provided defendant provided where defendant detailed affidavit s~ting detai!~d_~ffidavit she. was at home that she_ s~ating that of each time of home at time service as she was attempted service each attempted was recovering surgery and recovering from surgery and never heard anyone never heard anyone knock ring her knock or ring doorbell and her doorbell and that leaving , upon leaving that upon her her home home the the day day after after the the alleged service, she alleged service, she did not papers affixed not see any pap'ers her door]). affixed to her Though door]). Though Williams avers Mr. Williams avers that that he was was home June 16 when home on June attempted and service was attempted when servi".~ when · June 20 when and on June the papers papers were affixed to the were affixed failed to address door, he failed the door, address the process server's the process the averments as to the server's averments other other two attempted service two attempted dates (US. service dates (US. Bank N.A. v Itshak, Bank NA. AD3d 919, Itsha'{c, 189 AD3d Dept 920-921 [2d Dept 919, 920-921 2020]).

2020]).

Moreover, Moreover, the Second Department the Second has determined Department has that a defaulting determined that defaulting party has failed party has rebut · failed to rebut . the presumption presumption of proper service of proper service by, failing to submit example, failing by, for example, affidavits of submit affidavits of other residents other residents or family family members visiting the members visiting which they home in which the home deny seeing they deny copies of seeing copies affixed to the papers affixed of papers door or in the door the mail 921; Countrywide (id.atat 921; mail (id. Countrywide Home Loans, Inc. v Smith, Home Loans, 858, 860 [2d AD3d 858,860 Smith, 171 AD3d Dept Dept 2019]).

2019]). Here, Williams does Here, Mr. Williams not address, does not alone contest, address, let alone Ms. Graves' contest, Ms. .

Graves' assertions that assertions that papers were the papers were affixed door and mailed. the door affixed to the Thus, the mailed. Thus, Court finds the Court Williams' averments that Mr. Williams' finds that averments thereof insufficient or lack thereof insufficient to rebut presumption of the presumption rebut the proper service. of proper service. hereby Accordingly, it is hereby Accordingly, ORDERED, that ORDERED, that Defendant Rodney Williams' Defendant Rodney (Mot. Seq. No.3) motion (Mot.

Williams' motion denied; and it No. 3) is denied; is further further ORDERED, ORDERED, that that Plaintiff's motion (Mot.

Plaintifrs motion the extent granted to the No. 4) is granted (Mot. Seq. No.4) that extent that Defendant Rodney Defendant Rodney Williams required to pay Williams is required ofre-publishing the Notice costs ofre-publishing pay (a) the costs of Sale and Notice of (b) his prorated prorated share real estate of all real share of taxes and estate taxes water charges and water that have charges that since the stay of accrued since have accrued of scheduled auction. the scheduled auction. other issues All other not addressed issues not herein are without addressed herein merit or moot. without merit moot.

This constitutes This the decision constitutes the order of decision and order of the Court. the.,Court.

HON. ING~SEPH, .·_ H~N. ING~SEPH, J.S.C. J.8.c.

Han. Ingrid Hon. Joseph Ingrid Joseph Supreme Court Justice Supreme Court Justice