| Indymac Bank, F.S.B. v Kamen |
| 2009 NY Slip Op 09431 [68 AD3d 931] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Indymac Bank, F.S.B., Respondent, v Stuart M. Kamen,Appellant, et al., Defendants. |
—[*1] Steven J. Baum, P.C., Buffalo, N.Y. (Adam Gross and Michelle D. Maccagnano of counsel),for respondent.
In an action to foreclose a mortgage, the defendant Stuart M. Kamen appeals from an orderof the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 17, 2008, whichgranted the plaintiff's motion for summary judgment, and denied his cross motion to dismiss thecomplaint.
Ordered that the order is affirmed, with costs.
In support of its motion for summary judgment, the plaintiff made a prima facie showing ofits entitlement to judgment as a matter of law. In opposition, the appellant failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Contrary to the appellant's contention, the notice of default sent to him by the respondentduly afforded him an opportunity to cure his default, as required by the terms of the subjectmortgage. Furthermore, the notice of default otherwise substantially complied with the terms ofthe mortgage (see First Trust Natl. Assn. v Meisels, 234 AD2d 414 [1996]; FederalHome Loan Mtge. Corp. v Cool, 1995 Me Super LEXIS 126, *4-5 [Super Ct 1995]; cf.Moet II v McCarthy, 229 AD2d 876 [1996]).
The appellant's contentions with respect to improper service of the summons and complaintare without merit. The affidavit from the respondent's process server constituted prima facieevidence of proper service pursuant to CPLR 308 (2), and the appellant failed to raise a triableissue of fact (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525 [2008];Remington Invs. v Seiden, 240 AD2d 647 [1997]). Covello, J.P., Santucci, Chambersand Hall, JJ., concur.