| Gottesman v Friedman |
| 2011 NY Slip Op 08906 [90 AD3d 608] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Irene Gottesman et al., Respondents, v Evelyn Friedman,Also Known as Eveline Friedman, et al., Appellants, et al.,Defendants. |
—[*1] Tratner, Molloy & Goodstein LLP, New York, N.Y. (Jason Y. Goodstein of counsel), forrespondents.
In an action to foreclose a mortgage, the defendants Evelyn Friedman and AlexanderFriedman appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered June30, 2010, which, after a hearing to determine the validity of service of process, denied theirmotion, in effect, pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court enteredDecember 5, 2006, upon their failure to appear or answer, on the ground that the court lackedjurisdiction to render a judgment, in effect, pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against them for lack of personal jurisdiction, and pursuant toCPLR 5015 (a) (1) to vacate the judgment entered December 5, 2006, on the ground of excusabledefault.
Ordered that the order is affirmed, with costs.
A judgment was entered against the appellants in this action on December 5, 2006, upontheir failure to appear or answer. By order to show cause dated May 8, 2008, the appellantsmoved, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment on the ground that thecourt lacked jurisdiction to render a judgment, in effect, pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against them for lack of personal jurisdiction, andpursuant to CPLR 5015 (a) (1) to vacate the judgment on the ground of excusable default. Theappellants claimed, among other things, that they were not properly served with the summonsand complaint in this action. The plaintiffs opposed the motion. The Supreme Court conducted ahearing to determine the validity of service of process. In the order appealed from, the SupremeCourt denied the appellants' motion. We affirm.
"Service of process must be made in strict compliance with statutory 'methods for effectingpersonal service upon a natural person' pursuant to CPLR 308" (Santiago v Honcrat, 79 AD3d 847,847-848 [2010] [some internal quotation marks omitted], quoting Estate of Waterman v Jones, 46 AD3d63, 65 [2007], quoting Macchia v Russo, 67 NY2d 592, 594 [1986]). CPLR 308 (1)authorizes service to be made "by delivering the summons within the state to the person to beserved" (see Estate of Waterman vJones, 46 AD3d 63, 65 [2007]). " 'The plaintiff bears the ultimate burden of proving bya preponderance of the evidence that [*2]jurisdiction over thedefendant was obtained by proper service of process' " (Santiago v Honcrat, 79 AD3d at848 [some internal quotation marks omitted], quoting Roberts v Anka, 45 AD3d 752, 753 [2007], quoting BankersTrust Co. of Cal. v Tsoukas, 303 AD2d 343, 343 [2003]).
Here, the plaintiffs established by a preponderance of the evidence, through two affidavits ofservice and evidence presented at the hearing to determine the validity of service of process, thatthe appellants were properly served pursuant to CPLR 308 (1) (see e.g. Valiotis v Psaroudis, 78 AD3d683, 684 [2010]). In response, the appellants offered unsubstantiated denials, which wereinsufficient to rebut the presumption of proper service (see US Consults v APG, Inc., 82 AD3d 753 [2011]). Further, theSupreme Court's credibility determinations following the hearing are entitled to deference, andwe decline to disturb them on this appeal (see Santiago v Honcrat, 79 AD3d at 848).Accordingly, the Supreme Court properly denied that branch of the appellants' motion whichwas, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againstthem for lack of personal jurisdiction.
The appellants' remaining contentions are without merit or need not be reached in light of ourdetermination. Florio, J.P., Hall, Austin and Cohen, JJ., concur.