| Scarano v Scarano |
| 2009 NY Slip Op 04410 [63 AD3d 716] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Laurie Scarano, Respondent, v Steven Scarano,Appellant. |
—[*1]
In a matrimonial action in which the parties were divorced by judgment entered December15, 1999, the defendant father appeals from an order of the Supreme Court, Nassau County(Stack, J.), dated December 15, 2007, which, inter alia, granted the motion of the plaintiff motherto hold him in contempt for failure to comply with the child support provisions contained in theparties' so-ordered agreement dated February 28, 2005, directed his incarceration for a period of90 days in the Nassau County Correctional Facility, and permitted him to purge himself of thecontempt by making payments in accordance with a schedule.
Ordered that the order is affirmed, without costs or disbursements.
The defendant argues that the trial court should have granted an evidentiary hearing todetermine whether he had been personally served with the order to show cause and motionpapers upon which the finding of contempt was made. We disagree. A process server's affidavitof service constitutes prima facie evidence of proper service (see Matter of de Sanchez, 57 AD3d 452, 454 [2008]; NYCTL1997-1 Trust v Nillas, 288 AD2d 279 [2001]). Although a defendant's sworn denial ofreceipt of service generally rebuts the presumption of proper service established by the processserver's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli,Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swearto "specific facts to rebut the statements in the process server's affidavits" (Simonds vGrobman, 277 AD2d 369, 370 [2000]). Here, the defendant's affidavit was insufficient.Since he never denied the specific facts contained in the process server's affidavit, no hearingwas required.[*2]
The defendant's remaining contentions are without merit.Rivera, J.P., Eng, Chambers and Hall, JJ., concur.