| Countrywide Home Loans Servicing, LP v Albert |
| 2010 NY Slip Op 08692 [78 AD3d 983] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Countrywide Home Loans Servicing, LP,Respondent, v Linda Albert, Appellant, et al., Defendants. |
—[*1] Steven J. Baum, P.C., Buffalo, N.Y. (Morgan Taylor of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Linda Albert appeals from so much of anorder of the Supreme Court, Putnam County (O'Rourke, J.), dated April 15, 2009, as denied thatbranch of her motion which was to vacate a judgment of foreclosure and sale dated October 10,2008.
Ordered that the order is affirmed insofar as appealed from, with costs.
" 'An appearance by a defendant in an action is deemed to be the equivalent of personalservice of a summons upon him [or her], and therefore confers personal jurisdiction over him [orher], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [orher] answer' " (Ohio Sav. Bank vMunsey, 34 AD3d 659, 659 [2006], quoting Skyline Agency v Coppotelli, Inc.,117 AD2d 135, 140 [1986]; see CPLR 320; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538[2005]). " 'By statute, a party may appear in an action by attorney (CPLR 321), and such anappearance constitutes an appearance by the party for purposes of conferring jurisdiction' "(National Loan Invs., L.P. v Piscitello, 21 AD3d at 537-538, quoting Skyline Agencyv Coppotelli, Inc., 117 AD2d at 140). It is undisputed that the attorney formerly representingthe defendant Linda Albert (hereinafter the defendant) filed a notice of appearance on her behalfin this action, and that neither the defendant nor her attorney moved to dismiss the complaint onthe ground of lack of personal jurisdiction or asserted lack of personal jurisdiction in aresponsive pleading (see Ohio Sav. Bank v Munsey, 34 AD3d at 659). Accordingly, thedefendant waived any claim that the Supreme Court lacked personal jurisdiction over her in thisaction (id. at 659-660; see Matter of Woicik v Town of E. Hampton, 207 AD2d356, 357 [1994]). In any event, the defendant's claim that she was not properly served in thisaction is without merit. "Service of process must be made in strict compliance with statutory'methods for effecting personal service upon a natural person' pursuant to CPLR 308" (Estate of Waterman v Jones, 46 AD3d63, 65 [2007], quoting Macchia v Russo, 67 NY2d 592, 594 [1986]; seeDorfman v Leidner, 76 NY2d 956, 958 [1990]). "A process server's affidavit of serviceconstitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716 [2009]). "Although adefendant's sworn denial of receipt of service generally rebuts the presumption of proper serviceestablished by the process server's affidavit and necessitates an evidentiary hearing (seeSkyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required wherethe defendant fails to swear to 'specific facts to rebut the statements in the process server'saffidavits' " (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman,277 AD2d 369, 370 [2000]). Here, the [*2]defendant's claimswere insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308 (4)created by the process server's affidavit and to warrant a hearing to determine the validity ofservice of process (see City of NewYork v Miller, 72 AD3d 726, 727 [2010]; Scarano v Scarano, 63 AD3d at 716).
The Supreme Court properly declined to consider the reply papers submitted by thedefendant in further support of her motion, inter alia, to vacate a judgment of foreclosure and saledated October 10, 2008. Under the circumstances of this case, and based on demands set forth inthe defendant's notice of motion, the defendant's reply papers were required to be submitted atleast one day before the motion's return date (see CPLR 2214 [b]). Moreover, inasmuchas consideration of these papers was a matter within the discretion of the court (seeCPLR 2214 [c]), the Supreme Court providently exercised its discretion in declining toconsider them, as the defendant offered no excuse for her delay in submitting the papers (cf.Mosheyeva v Distefano, 288 AD2d 448, 449 [2001]; Romeo v Ben-Soph FoodCorp., 146 AD2d 688, 690 [1989]).
The defendant waived any argument that the plaintiff lacked standing to commence thisaction. Having failed to interpose an answer or file a pre-answer motion which asserted thedefense of standing, the defendant waived that defense pursuant to CPLR 3211 (e) (see HSBC Bank, USA v Dammond, 59AD3d 679, 680 [2009]; see WellsFargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242-245 [2007]).
The defendant's remaining contentions are either not properly before this Court or withoutmerit. Dillon, J.P., Santucci, Dickerson and Chambers, JJ., concur.