| Beneficial Homeowner Serv. Corp. v Girault |
| 2009 NY Slip Op 02552 [60 AD3d 984] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Beneficial Homeowner Service Corporation,Respondent, v Poucher Girault, Appellant, et al.,Defendants. |
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In an action to foreclose a mortgage, the defendant Poucher Girault appeals from an order ofthe Supreme Court, Orange County (Slobod, A.J.), dated October 16, 2007, which denied hismotion to vacate a final judgment of foreclosure and sale of the same court entered May 3, 2007,upon his default in answering the complaint.
Ordered that the order is affirmed, with costs.
The motion of the defendant Poucher Girault (hereinafter the defendant) to vacate the finaljudgment of foreclosure and sale was properly denied without a hearing. The affidavit of theprocess server constituted prima facie evidence of proper service pursuant to CPLR 308 (2)(see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d 732 [2008];Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2008]; Bankers Trust Co. ofCal. v Tsoukas, 303 AD2d 343, 343-344 [2003]), and the defendant's bare andunsubstantiated denial of receipt was insufficient to rebut the presumption of proper servicecreated by the affidavit of service (see 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d845, 846 [2008]; Rosario v Beverly Rd. Realty Co., 38 AD3d 875 [2007]; ChemicalBank v Darnley, 300 AD2d 613 [2002]; Simmons First Natl. Bank v Mandracchia,248 AD2d 375 [1998]). "A court need not conduct a hearing to determine the validity of theservice of process where the defendant fails to raise an issue of fact regarding service"(Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57 AD3d at 733).
Furthermore, the defendant failed to establish that he was entitled to vacatur of the finaljudgment of foreclosure and sale pursuant to CPLR 317 as the record is devoid of any evidencetending to show a meritorious defense (see Green Point Sav. Bank v 794 Utica Ave. RealtyCorp., [*2]242 AD2d 602, 602-603 [1997]; Halali vGabbay, 223 AD2d 623, 623-624 [1996]).
The defendant's remaining contentions are either improperly raised for the first time onappeal or without merit. Prudenti, P.J., Skelos, Dillon and Eng, JJ., concur.