| Deutsche Bank Natl. Trust Co. v Dixon |
| 2012 NY Slip Op 01650 [93 AD3d 630] |
| March 6, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Eldon Dixon, Defendant, and Patrick Hollingsworth,Appellant. |
—[*1] Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista ofcounsel), for respondent.
In an action to foreclose a mortgage on real property, the defendant Patrick Hollingsworthappeals from an order of the Supreme Court, Queens County (Flaherty, J.), entered July 6, 2009,which denied, without a hearing, his motion pursuant to CPLR 5015 (a) (4) to vacate a judgmentof foreclosure and sale of the same court dated January 16, 2008, and entered upon his default inappearing or answering the complaint.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied, without a hearing, the motion of the defendant PatrickHollingsworth (hereinafter the defendant) to vacate the underlying judgment of foreclosure andsale on the ground of lack of proper service of process. The defendant's conclusory denial ofreceipt of a copy of the summons and complaint was insufficient to rebut the presumption ofproper service established by the affidavit of the plaintiff's process server (see Countrywide Home Loans Servicing,LP v Albert, 78 AD3d 983, 984-985 [2010]; City of New York v Miller, 72 AD3d 726, 727 [2010]; Scarano v Scarano, 63 AD3d 716[2009]).
Further, contrary to the defendant's contention, the foreclosure and sale were not stayed byvirtue of the filing of his third bankruptcy petition (see 11 USC § 362 [c] [4] [A][i]).
The defendant's remaining contentions are without merit. Angiolillo, J.P., Leventhal, Austinand Roman, JJ., concur.