| Tikvah Enters., LLC v Neuman |
| 2011 NY Slip Op 00502 [80 AD3d 748] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Tikvah Enterprises, LLC, Respondent, v Samuel Neuman,Appellant, et al, Defendants. |
—[*1] Lonuzzi & Woodland, LLP, Brooklyn, N.Y. (John Lonuzzi and Israel Vider of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Samuel Neuman appeals from (1) anorder of the Supreme Court, Kings County (Hinds-Radix, J.), dated January 29, 2009, which,inter alia, granted that branch of the plaintiff's motion which was pursuant to CPLR 306-b toextend the plaintiff's time to serve him with the summons and complaint, and (2) an order of thesame court (King, J.), dated October 23, 2009, which denied his motion pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
Ordered that the orders are affirmed, with one bill of costs.
Under the circumstances of this case, the Supreme Court did not improvidently exercise itsdiscretion in granting that branch of the plaintiff's motion which was pursuant to CPLR 306-b toextend its time to serve the defendant Samuel Neuman (hereinafter the defendant) with thesummons and complaint. A consideration of the relevant factors, as revealed in the record,supported the extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95,105-106 [2001]; Bumpus v New YorkCity Tr. Auth., 66 AD3d 26, 31-32 [2009]; see also Earle v Valente, 302 AD2d353, 354 [2003]; Seon Uk Lee v Corso, 300 AD2d 385, 386 [2002]; Citron vSchlossberg, 282 AD2d 642 [2001]).
Moreover, the Supreme Court properly denied, without a hearing, the defendant's motionpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lackof personal jurisdiction. A process server's affidavit of service constitutes prima facie evidence ofproper service (see Associates FirstCapital Corp. v Wiggins, 75 AD3d 614 [2010]; Scarano v Scarano, 63 AD3d 716 [2009]). "Although a defendant'ssworn denial of receipt of service generally rebuts the presumption of proper service establishedby the process server's affidavit and necessitates an evidentiary hearing . . . nohearing is required where the defendant fails to swear to 'specific facts to rebut the statements inthe process server's affidavits' " (Scarano v Scarano, 63 AD3d at 716, quotingSimonds v Grobman, 277 AD2d 369, 370 [2000]; see Associates First Capital Corp.v Wiggins, 75 AD3d at 614-615; City of New York v Miller, 72 AD3d 726, 727 [2010]). Here, thedefendant never denied the specific facts contained in the process server's affidavits.Accordingly, no hearing was required (see Scarano v Scarano, 63 AD3d at 716-717; Roberts v Anka, 45 AD3d 752,754 [2007]).[*2]
The defendant's remaining contentions are without meritor need not be reached in light of our determination. Covello, J.P., Dickerson, Hall and Lott, JJ.,concur.