Justice Joan Madden
Walters moved to vacate his default and the judgment of foreclosure and sale in this mortgage foreclosure action. Wells Fargo Bank sought to foreclose on a mortgage on the subject property. Walters sought to vacate his default arguing he was never served in the matter and based on newly discovered evidence showing the court lacked standing, thus had no subject matter jurisdiction over the action, among other things. The court found the affidavit of service of the process server established prima facie that Walters was validly served by delivery to a person of suitable age and discretion at his actual dwelling. It stated Walters’ conclusory denial that he was never served and had no knowledge of the action was insufficient to rebut the presumption of proper service. The court noted Walters’ affidavit was silent as to Christine Walters, the person of suitable age and discretion who accepted delivery of the papers on Walters’ behalf at his residence. Hence, Walters failed to establish an issue of fact for a traverse hearing. Further, the court noted Walters failed to establish a reasonable excuse for his default, and he was not entitled to relief under CPLR 5015(a)(1). Also, it found Walters’ request for CPLR 317 relief untimely, and denied his motion entirely.
