| Deutsche Bank Natl. Trust Co. v Hussain |
| 2010 NY Slip Op 08695 [78 AD3d 989] |
| November 23, 2010 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Farhana Hussain, Appellant, et al.,Defendants. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Farhana Hussain appeals, as limited byher brief, from so much of an order of the Supreme Court, Queens County (Satterfield, J.), datedApril 15, 2009, as denied her motion, inter alia, to vacate a judgment of foreclosure and sale ofthe same court dated March 25, 2008, which was entered upon her default in answering thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the defendant FarhanaHussain (hereinafter the defendant) which was pursuant to CPLR 5015 (a) (4) to vacate ajudgment of foreclosure and sale. The affidavit of the process server constituted prima facieevidence of proper service pursuant to CPLR 308 (2) (see Hamlet on Olde Oyster Bay Homeowners Assn., Inc. v Ellner, 57AD3d 732, 732 [2008]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343,343-344 [2003]), and the defendant's bare and unsubstantiated denial of receipt was insufficientto rebut the presumption of proper service (see Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984,984 [2009]; Mortgage Elec. RegistrationSys., Inc. v Schotter, 50 AD3d 983, 983 [2008]; Rosario v Beverly Rd. Realty Co., 38 AD3d 875, 875 [2007]).Moreover, the defendant's conclusory denial of service was insufficient to require a hearing todetermine the validity of service of process (see Hamlet on Olde Oyster Bay HomeownersAssn., Inc. v Ellner, 57 AD3d at 732; Simmons First Natl. Bank v Mandracchia, 248AD2d 375, 375 [1998]).
The defendant waived any argument that the plaintiff lacked standing to commence theforeclosure action. Having failed to interpose an answer or file a timely pre-answer motionasserting the defense of lack of standing pursuant to CPLR 3211 (e), the defendant waived thatdefense (see Deutsche Bank Natl. TrustCo. v Young, 66 AD3d 819 [2009]; HSBC Bank, USA v Dammond, 59 AD3d 679, 680 [2009]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 244 [2007]). Additionally, since the defendant failed todemonstrate any other potentially meritorious defense to the foreclosure action or a reasonableexcuse for her failure to answer, the Supreme Court also [*2]properly denied that branch of the defendant's motion pursuant toCPLR 5015 (a) (1) which was to vacate the judgment of foreclosure and sale (see Star Indus., Inc. v InnovativeBeverages, Inc., 55 AD3d 903, 904 [2008]; Hegarty v Ballee, 18 AD3d 706, 707 [2005]). Mastro, J.P., Covello,Angiolillo and Lott, JJ., concur.