| Francis v Francis |
| 2008 NY Slip Op 01299 [48 AD3d 512] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Viola Francis, Respondent, v Alva Francis,Appellant. |
—[*1] Ira Bierman, Syosset, N.Y., for respondent.
In an action for a divorce and ancillary relief, the defendant appeals from an order of theSupreme Court, Queens County (Strauss, J.), entered May 4, 2007, which denied his motion tovacate a judgment of divorce entered September 18, 2001 upon his failure to appear or answer.
Ordered that the order is affirmed, with costs.
The defendant claims, inter alia, that the Supreme Court lacked jurisdiction to enter thejudgment of divorce because he was not properly served with the summons with notice.However, a process server's sworn affidavit of service ordinarily constitutes prima facie evidenceof proper service (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]). Here,the process server's affidavit of service established that service was properly made in accordancewith an ex parte order of the court authorizing an alternate method of service (see CPLR308 [5]), and the defendant's conclusory allegations were insufficient to rebut the presumption ofproper service (see Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998];Remington Invs. v Seiden, 240 AD2d 647 [1997]). Moreover, the defendant's claims thatthe plaintiff procured the ex parte order through fraudulent means are unsupported by the record.Accordingly, the Supreme Court providently exercised its discretion in denying the defendant'smotion to vacate the judgment of divorce entered September 18, 2001 upon his failure to appearor answer. Mastro, J.P., Fisher, Florio, Angiolillo and Dickerson, JJ., concur.