| U.S. Bank N.A. v Hossain |
| 2012 NY Slip Op 02864 [94 AD3d 979] |
| April 17, 2012 |
| Appellate Division, Second Department |
| U.S. Bank National Association, Respondent, v RuhellaHossain, Appellant, et al., Defendants. |
—[*1] Locke Lord LLP, New York, N.Y. (R. James De Rose III of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Ruhella Hossain appeals from an order ofthe Supreme Court, Queens County (Cullen, J.), dated June 8, 2011, which denied, without ahearing, her motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and saleof the same court dated December 17, 2008, entered upon her default in appearing or answeringthe complaint and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst her for lack of proper service.
Ordered that the order dated June 8, 2011, is affirmed, with costs.
The motion of the defendant Ruhella Hossain (hereinafter the defendant) pursuant to CPLR5015 (a) (4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against her for lack of proper service was properlydenied without a hearing. The affidavit of the process server constituted prima facie evidence ofproper service pursuant to CPLR 308 (4) (see Washington Mut. Bank v Holt, 71 AD3d 670 [2010]; Mortgage Elec. Registration Sys., Inc. vSchotter, 50 AD3d 983 [2008]). In opposition, the defendant's affidavit was insufficientto rebut the presumption of proper service created by the process server's affidavit (see Prospect Park Mgt., LLC v Beatty,73 AD3d 885, 886 [2010]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2009];Mortgage Elec. Registration Sys., Inc. vSchotter, 50 AD3d 983 [2008]). Thus, the Supreme Court properly denied thedefendant's motion (see Household Fin.Realty Corp. of N.Y. v Brown, 13 AD3d 340, 341 [2004]). Skelos, J.P., Dickerson, Engand Leventhal, JJ., concur.