| NYCTL 2009-A Trust v Tsafatinos |
| 2012 NY Slip Op 09037 [101 AD3d 1092] |
| December 26, 2012 |
| Appellate Division, Second Department |
| NYCTL 2009-A Trust et al., Respondents, v DemetriosTsafatinos et al., Appellants, et al., Defendants. |
—[*1] Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Josef F. Abt of counsel), forrespondents.
In an action to foreclose on a real property tax lien, the defendants Demetrios Tsafatinos andStamatiki Tsafatinos appeal from an order of the Supreme Court, Kings County (Steinhardt, J.),dated March 29, 2011, which granted the plaintiffs' motion for summary judgment on thecomplaint, and denied, without a hearing, their cross motion, inter alia, to dismiss the complaintinsofar as asserted against them pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
In this action to foreclose on a tax lien that arose as a result of the appellants' failure to paycertain sewer rents, sewer surcharges, and water rents, the plaintiffs demonstrated their primafacie entitlement to judgment as a matter of law by submitting proof that the appellants had madeno payments on the subject tax lien (seeNYCTL 1996-1 Trust v Orit Diagnostic Ctr., Inc., 19 AD3d 668 [2005]; NYCTL 1996-1 Trust v WestmorelandAssoc., 2 AD3d 811, 812 [2003]). In opposition, the appellants failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]).
Any challenges the appellants may have had to the bills or charges that resulted in the lien aresubject to the exhaustion rule, requiring that "one who objects to the act of an administrativeagency must exhaust available administrative remedies before being permitted to litigate in acourt of law" (Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). Sincethe appellants failed to pursue the available administrative remedies (see 15 RCNY ch42, Appendix A, part IX, § 2), and none of the exceptions to the exhaustion doctrineapplies here (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d at 57; 17 Fortune Corp. v Town of Babylon,96 AD3d 929, 929-930 [2012]; Town of Oyster Bay v Kirkland, 81 AD3d 812, 815 [2011],affd 19 NY3d 1035 [2012]), the appellants were precluded from challenging the amountsof the charges in this action (seeNYCTL 1998-2 Trust v T. Jan Realty Corp., 63 AD3d 810, 811 [2009]). In any event,"any dispute as to the amount of the lien may be resolved after a reference pursuant to RPAPL1321" (NYCTL 1999-1 Trust vStark, 21 AD3d 402, 403 [2005]).
The Supreme Court properly denied, without a hearing, that branch of the appellants' [*2]cross motion which was to dismiss the complaint insofar as assertedagainst them for lack of personal jurisdiction. " 'A process server's affidavit of service constitutesprima facie evidence of proper service' " (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983,984 [2010], quoting Scarano vScarano, 63 AD3d 716, 716 [2009]; see Tikvah Enters., LLC v Neuman, 80 AD3d 748, 749 [2011]; Associates First Capital Corp. vWiggins, 75 AD3d 614 [2010]). "Although a defendant's sworn denial of receipt ofservice generally rebuts the presumption of proper service established by the process server'saffidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc.,117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to specificfacts to rebut the statements in the process server's affidavits" (Countrywide Home LoansServicing, LP v Albert, 78 AD3d at 984-985 [internal quotation marks and some citationsomitted]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749; Associates FirstCapital Corp. v Wiggins, 75 AD3d at 614; Scarano v Scarano, 63 AD3d at 716;Simonds v Grobman, 277 AD2d 369, 370 [2000]).
Here, the affidavit by the appellant Stamatiki Tsafatinos amounted to no more than bare andconclusory denials of service which were insufficient to rebut the prima facie proof of properservice pursuant to CPLR 308 (1) and (2) created by the process server's affidavits (see Citimortgage, Inc. v Phillips, 82AD3d 1032, 1033 [2011]; Associates First Capital Corp. v Wiggins, 75 AD3d at615; Chemical Bank v Darnley, 300 AD2d 613, 613 [2002]; Simonds vGrobman, 277 AD2d at 370).
The appellants' remaining contentions are improperly raised for the first time on appeal (see NYU Hosp. for Joint Diseases vCountry Wide Ins. Co., 84 AD3d 1043, 1044 [2011]; Boddie-Willis v Marziliano, 78 AD3d978, 979 [2010]; Gartner v UnifiedWindows, Doors & Siding, Inc., 68 AD3d 815, 816 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d853, 854 [2008]). Dillon, J.P., Leventhal, Austin and Miller, JJ., concur.