| Deutsche Bank Natl. Trust Co. v Pestano |
| 2010 NY Slip Op 02737 [71 AD3d 1074] |
| March 30, 2010 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Appellant, v Robin Pestano et al., Defendants, and Florence Glay,Respondent. |
—[*1] Albanese & Albanese, LLP, Garden City, N.Y. (Barry A. Oster of counsel), forrespondent.
In action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court,Kings County (Bunyan, J.), dated March 25, 2009, which, upon a decision of the same court(Archer, J.H.O.), dated January 29, 2009, made after a hearing, finding that service of processwas improper, granted the motion of the defendant Florence Glay to vacate a judgment offoreclosure and sale of the same court entered June 14, 2007.
Ordered that the order is affirmed, with costs.
A process server's affidavit of service ordinarily constitutes prima facie evidence of properservice (see Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]; BankersTrust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344 [2003]; Bank of Am. Natl. Trust &Sav. Assn. v Herrick, 233 AD2d 351, 351-352 [1996]). However, where there is a sworndenial of receipt of process, the affidavit of service is rebutted, and the plaintiff must establishjurisdiction by a preponderance of the evidence at a hearing (see Wells Fargo Bank, NA vChaplin, 65 AD3d at 589; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344;Bank of Am. Natl. Trust & Sav. Assn. v Herrick, 233 AD2d at 352). Here, the sworndenial of the defendant Florence Glay (hereinafter the defendant) that her daughter was notstaying at her home on the date service allegedly was made on her rebuts the process server'saffidavit of service (see Wells Fargo Bank, NA v Chaplin, 65 AD3d at 588;Kingsland Group v Pose, 296 AD2d 440 [2002]; European Am. Bank & Trust Co. vSerota, 242 AD2d 363, 364 [1997]; LeFevre v Cole, 83 AD2d 992 [1981]).Accordingly, the Supreme Court correctly directed a hearing on the issue of service.
In reviewing a determination made by a hearing court, the power of the Appellate Division isas broad as that of the hearing court and it may render the determination it finds warranted by thefacts, taking into account that, in a close case, the hearing court had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Freud v St. Agnes Cathedral School, 64 AD3d678, 679 [2009]; Ortiz v Jamwant, 305 AD2d 477, 478 [2003]). Here, the hearing court'sdetermination that service was not properly [*2]effected issupported by the record (id.).
Since personal jurisdiction over the defendant was never acquired, the default judgmententered against her was a nullity, and she was not required to demonstrate a meritorious defense(see Steele v Hempstead Pub Taxi, 305 AD2d 401, 402 [2003]; European Am. Bank& Trust Co. v Serota, 242 AD2d at 363; DeMartino v Rivera, 148 AD2d 568, 569[1989]).
The plaintiff's remaining contentions are without merit. Covello, J.P., Florio, Eng andChambers, JJ., concur.