| U.S. Bank N.A. v Tate |
| 2013 NY Slip Op 00326 [102 AD3d 859] |
| January 23, 2013 |
| Appellate Division, Second Department |
| U.S. Bank National Association,Respondent, v Michael Tate, Appellant. |
—[*1] Locke Lord, LLP, New York, N.Y. (R. James DeRose III of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant appeals, as limited by his brief,from so much of an order of the Supreme Court, Orange County (Ecker, J.), dated March22, 2011, as denied those branches of his motion which were pursuant to CPLR 5015 (a)(3) and (4) to vacate a judgment of foreclosure and sale of the same court datedSeptember 13, 2010, entered upon his default in appearing or answering the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied those branches of the defendant's motion whichwere pursuant to CPLR 5015 (a) (3) and (4) to vacate a judgment of foreclosure and salethat was entered upon his default in appearing or answering the complaint. The processserver's affidavit of service constituted prima facie evidence of proper service of thesummons and complaint pursuant to CPLR 308 (2) and of proper service of the noticerequired by Real Property Actions and Proceedings Law § 1303, and thedefendant's bare and unsubstantiated denial of receipt was insufficient to rebut thepresumption of proper service (see Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2012]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 103 [2011]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989,989 [2010]; BeneficialHomeowner Serv. Corp. v Girault, 60 AD3d 984 [2009]). Further, the recordcontains no evidence of fraud or misrepresentation, and an alleged lack of standing is nota jurisdictional defect (seeDeutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810 [2012]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 242 [2007]). Finally, the plaintiff's alleged failureto comply with CPLR 3215 (f) does not render the judgment a nullity (see Zaidman v Zaidman, 90AD3d 1035, 1036 [2011]; Citimortgage, Inc. v Phillips, 82 AD3d 1032, 1033 [2011];Araujo v Aviles, 33 AD3d830 [2006]). Mastro, J.P., Lott, Austin and Sgroi, JJ., concur.