| Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner |
| 2008 NY Slip Op 09958 [57 AD3d 732] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Hamlet on Olde Oyster Bay Homeowners Association, Inc.,Respondent, v Gladys Ellner et al., Appellants. |
—[*1] Marc H. Schneider, P.C., Garden City, N.Y. (Ryan Mitola of counsel), for respondent.
In an action, inter alia, for an injunction compelling the defendants to remove all modifications andalterations to the garage and porch associated with their condominium unit made in violation of theplaintiff's condominium declaration and bylaws, the defendants appeal, as limited by their brief, from somuch of an order of the Supreme Court, Nassau County (Spinola, J.), dated July 24, 2007, as grantedthat branch of the plaintiff's motion which was for a preliminary injunction directing them to permit theplaintiff reasonable access to their condominium unit and associated structures for the purpose ofconducting an inspection to ascertain the existence, nature, and extent of any such modifications oralterations.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly rejected the contention of the defendant Gladys Ellner that theplaintiff did not properly serve her with a copy of the order to show cause by which it initiated itsmotion, inter alia, for a preliminary injunction directing the defendants to permit it reasonable access totheir condominium unit and associated structures. The plaintiff sought access in order to conduct aninspection to ascertain the existence, nature, and extent of any modifications or alternations which mayhave been made by the defendants to the garage and porch associated with their unit, in allegedviolation of the plaintiff's condominium declaration and bylaws. The affidavits of the process server,which indicated that Gladys Ellner was simultaneously served with copies of the summons, complaint,order to show cause, and supporting papers, constituted prima facie evidence of proper servicepursuant to CPLR 308 (2) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d[*2]983 [2008]; Bankers Trust Co. of Cal. v Tsoukas, 303AD2d 343, 343-344 [2003]), and the conclusory allegations to the contrary were insufficient to rebutthe presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50AD3d at 983; Remington Invs. v Seiden, 240 AD2d 647 [1997]). A court need not conduct ahearing to determine the validity of the service of process where the defendant fails to raise an issue offact regarding service (see Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]).Moreover, by asserting a counterclaim unrelated to the plaintiff's causes of action, the defendant GladysEllner took "affirmative advantage of the court's jurisdiction" and waived any personal jurisdictionaldefense that she may have had (Textile Tech. Exch. v Davis, 81 NY2d 56, 58-59 [1993];see GE Capital Mtge. Servs. v Mittelman, 238 AD2d 471 [1997]).
The defendants' remaining contentions are without merit. Mastro, J.P., Miller, Balkin andMcCarthy, JJ., concur.