| Bank of N.Y. Mellon v Scura |
| 2013 NY Slip Op 00166 [102 AD3d 714] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Bank of New York Mellon, Respondent, v JohnScura, Appellant,et al., Defendants. |
—[*1] Houser & Allison, APC, New York, N.Y. (Zachary K. Rosenberg of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant John Scura appeals from an orderof the Supreme Court, Nassau County (Iannacci, J.), dated September 13, 2011, whichdenied his motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against him on the ground of lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action on April 15, 2011, by filing a summons andcomplaint in the office of the Nassau County Clerk. According to the process server'saffidavit of service, the appellant was served with a copy of the summons and complaintat his home, the mortgaged premises, on April 26, 2011, by delivery of a copy of thesummons and complaint to Elaine Scura, referred to as a relative, and by the subsequentmailing of a copy of the summons and complaint to the same address, all pursuant toCPLR 308 (2). In late May 2011, the appellant moved to dismiss the complaint insofar asasserted against him on the ground of lack of personal jurisdiction. The Supreme Courtdenied the motion without a hearing.
The process server's affidavit of service constituted prima facie evidence of properservice pursuant to CPLR 308 (2) (see U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011];Simonds v Grobman, 277 AD2d 369 [2000]). While the appellant's affidavit insupport of his motion contained a denial of service, the appellant failed to swear to"specific facts to rebut the statements" in the process server's affidavit (Scarano v Scarano, 63 AD3d716, 716 [2009]). As such, no hearing was necessary to determine whether theappellant was properly served (see Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763[2012]; Associates First CapitalCorp. v Wiggins, 75 AD3d 614, 615 [2010]). In any event, the appellant'smotion was premature as it was made within the initial 120-day period provided forservice in CPLR 306-b (see Rink v Fulgenzi, 231 AD2d 562 [1996]). Since theplaintiff had the absolute statutory right to effect valid service at any point within the120-day period following the filing of the summons and complaint, dismissal of thecomplaint prior to the expiration of that period would have been improper (seeGelbard v Northfield Sav. Bank, 216 AD2d 267, 267-268 [1995]).[*2]
The appellant's remaining contentions either arewithout merit or refer to matter dehors the record. Dillon, J.P., Chambers, Sgroi andMiller, JJ., concur.