| Associates First Capital Corp. v Wiggins |
| 2010 NY Slip Op 06225 [75 AD3d 614] |
| July 27, 2010 |
| Appellate Division, Second Department |
| Associates First Capital Corporation, Respondent, v R.Jonathan Wiggins et al., Appellants. David D. DeRosa et al., NonpartyRespondents. |
—[*1] Katz & Rychik, New York, N.Y. (Bennett R. Katz of counsel), for plaintiff-respondent. Ernest E. Ranalli, Farmingdale, N.Y., for nonparty respondents.
In an action to foreclose a mortgage, the defendants appeal from an order of the SupremeCourt, Suffolk County (Blydenburgh, J.), dated April 27, 2009, which, without a hearing, deniedtheir motion to vacate a judgment of foreclosure and sale of the same court entered March 13,2008, setting aside the sale of the real property, and to dismiss the complaint pursuant to CPLR3211 (a) (8) for lack of personal jurisdiction.
Ordered that the order is affirmed, with one bill of costs.
The Supreme Court properly denied, without a hearing, inter alia, that branch of thedefendants' motion which was to dismiss the complaint for lack of personal jurisdiction. "Aprocess server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716,716 [2009]). "Although a defendant's sworn denial of receipt of service generally rebuts thepresumption of proper service established by the process server's affidavit and necessitates anevidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]),no hearing is required where the defendant fails to swear to 'specific facts to rebut the statementsin the process server's affidavits' " (Scarano v Scarano, 63 AD3d at 716, quotingSimonds v Grobman, 277 AD2d 369, 370 [2000]). Here, since the defendants' affidavitsamounted to no more than bare and conclusory denials of service which were insufficient torebut the prima facie proof of proper service pursuant to CPLR 308 (1) and (2) created by theprocess server's affidavit, no hearing was required (see City of New York v Miller, 72 AD3d 726 [2010]; Scaranov Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983,983 [2008]; 425 E. 26th St. OwnersCorp. v Beaton, 50 AD3d 845, 846 [2008]; Simonds v Grobman, 277 AD2d369, 370 [2000]).
The defendants' remaining contentions are either without merit or not properly before thisCourt. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.