| Indymac Fed. Bank, FSB v Hyman |
| 2010 NY Slip Op 04745 [74 AD3d 751] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Indymac Federal Bank, FSB, Respondent, v JeffreyHyman et al., Appellants, et al., Defendants. |
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In an action to foreclose a mortgage, the defendants Jeffrey Hyman and Ria Debra Hymanappeal, as limited by their brief, from so much of an order of the Supreme Court, DutchessCounty (Dolan, J.), dated May 27, 2009, as denied their cross motion, inter alia, to vacate ajudgment of foreclosure and sale of the same court dated January 6, 2009, entered upon theirdefault in answering the complaint, and to set aside the foreclosure sale.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly denied the appellants' motion, inter alia, to vacate the judgmentof foreclosure and sale entered upon their default in answering without conducting a hearing todetermine the validity of service of process. The process server's affidavits constituted primafacie evidence of proper service, and the appellants' allegations were insufficient to refute thecontents of the affidavits (see BeneficialHomeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]; Wells Fargo Bank, N.A. v McGloster,48 AD3d 457, 458 [2008]; NYCTL 1997-1 Trust v Nillas, 288 AD2d 279 [2001];Green Point Sav. Bank v Clark, 253 AD2d 514 [1998]; Simmons First Natl. Bank vMandracchia, 248 AD2d 375 [1998]). The claimed discrepancies between the appearance ofthe appellant Jeffrey Hyman and the description in the process server's affidavits were minor andinsufficiently substantiated to warrant a hearing (see Wells Fargo Bank, N.A. vMcGloster, 48 AD3d at 458; NYCTL 1997-1 Trust v Nillas, 288 AD2d at 279;Green Point Sav. Bank v Clark, 253 AD2d at 515; Simmons First Natl. Bank vMandracchia, 248 AD2d at 375). Covello, J.P., Dickerson, Eng and Austin, JJ., concur.