| 425 E. 26th St. Owners Corp. v Beaton |
| 2008 NY Slip Op 03417 [50 AD3d 845] |
| April 15, 2008 |
| Appellate Division, Second Department |
| 425 East 26th Street Owners Corp., Respondent, v LaurelBeaton, Appellant, et al., Defendants. |
—[*1] Rosenberg & Estis, P.C., New York, N.Y. (Deborah Riegel and Alexander Lycoyannis ofcounsel), for respondent.
In an action, inter alia, to foreclose a mortgage, the defendant Laurel Beaton appeals from (1)an order of the Supreme Court, Kings County (Kurtz, J.), dated May 31, 2007, which granted theplaintiff's unopposed motion for a final judgment of foreclosure and sale against her upon herfailure to timely answer pursuant to an order of the same court dated January 22, 2007, and (2) anorder of the same court dated November 19, 2007, which denied her motion, in effect, to vacateher default in answering.
Ordered that the appeal from the order dated May 31, 2007 is dismissed; and it is further,
Ordered that the order dated November 19, 2007 is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The order dated May 31, 2007 was issued upon the defendant's default. No appeal lies froman order made upon the default of the appealing party (see CPLR 5511).
The motion of the defendant Laurel Beaton to vacate, in effect, her default in answering wasproperly denied. Contrary to the defendant's contention, the plaintiff properly obtained personaljurisdiction over her. The affidavit of the plaintiff's process server constituted [*2]prima facie evidence of proper service pursuant to CPLR 308 (4)(see Olesniewicz v Khan, 8 AD3d354, 355 [2004]; Matrix Fin. Servs. Corp. v McKiernan, 295 AD2d 579 [2002];Manhattan Sav. Bank v Kohen, 231 AD2d 499 [1996]). The defendant's bare denial ofservice was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process server's affidavit (see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21AD3d 447 [2005]; Mauro vMauro, 13 AD3d 345, 345-346 [2004]; Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340, 341[2004]; Carrenard v Mass, 11 AD3d501 [2004]) and no hearing was required (see Simonds v Grobman, 277 AD2d 369[2000]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).
By order dated January 22, 2007 the Supreme Court vacated the defendant's default on thecondition that she serve and file her answer within 30 days. The defendant failed to do so. Sincethe appellant failed to establish a reasonable excuse for that default (see CPLR 5015 [a]),there was no basis to vacate it. Therefore, we affirm the denial of her motion without reachingthe issue of whether she has a meritorious defense to the action (see Matter of Travelers Prop. Cas. Corp. vBocharova, 2 AD3d 533 [2003]).
The defendant's remaining contentions either are improperly raised for the first time onappeal and therefore not properly before this Court (see Glaser v County of Orange, 22 AD3d 720, 721 [2005]), or arewithout merit. Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur.