| Citimortgage, Inc. v Phillips |
| 2011 NY Slip Op 02343 [82 AD3d 1032] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Citimortgage, Inc., Respondent, v Seibert R. Phillips,Appellant, et al., Defendants. Snowflake, L.P., NonpartyRespondent. |
—[*1] Katz & Rychik, New York, N.Y. (Bennett R. Katz of counsel), for plaintiff-respondent. Schulman, Kissel & Keene, P.C., Suffern, N.Y. (Julian Alan Schulman of counsel), fornonparty respondent.
In an action to foreclose a mortgage, the defendant Seibert R. Phillips appeals from an orderof the Supreme Court, Rockland County (Jamieson, J.), entered April 2, 2010, which denied,without a hearing, his motion, in effect, pursuant to CPLR 5015 (a) (4) to vacate a judgment offoreclosure and sale of the same court (Nelson, J.) entered September 9, 2009, upon his default inappearing or answering.
Ordered that the order is affirmed, with one bill of costs.
The Supreme Court properly denied, without a hearing, the motion of the defendant SeibertR. Phillips (hereinafter the defendant), in effect, pursuant to CPLR 5015 (a) (4) to vacate ajudgment of foreclosure and sale on the ground of lack of jurisdiction. The affidavit of theplaintiff's process server constituted prima facie evidence of valid service upon the defendant ofthe summons and complaint pursuant to CPLR 308 (1) (see Prospect Park Mgt., LLC v Beatty, 73 AD3d 885, 886 [2010]).In response, the defendant offered only a bare and unsubstantiated denial of service, which wasinsufficient to rebut the presumption of proper service (see Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327[2009]; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]).
Further, contrary to the defendant's contention, the plaintiff's alleged failure to comply withCPLR 3215 (f) did not render the judgment a nullity, or warrant excusing his default (see Araujo v Aviles, 33 AD3d 830[2006]). Rivera, J.P., Florio, Dickerson, Hall and Roman, JJ., concur.