| Wachovia Bank, N.A. v Carcano |
| 2013 NY Slip Op 03083 [106 AD3d 726] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Wachovia Bank, National Association,Respondent, v Felix M. Carcano et al., Appellants. |
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In an action to recover damages for breach of a promissory note, the defendantsappeal from an order of the Supreme Court, Westchester County (Giacomo, J.), enteredNovember 21, 2011, which denied their motion to vacate a judgment of the same courtentered February 26, 2009, upon their failure to appear or answer the complaint, and todismiss the complaint on the ground of lack of personal jurisdiction.
Ordered that the order is affirmed, without costs or disbursements.
The defendants moved to vacate a judgment entered in favor of the plaintiff andagainst them upon their failure to appear or answer the complaint, and to dismiss thecomplaint on the ground of lack of personal jurisdiction. The Supreme Court denied themotion.
Ordinarily, a process server's sworn affidavit of service is prima facie evidence ofproper service pursuant to CPLR 308 (2) (see Roberts v Anka, 45 AD3d 752, 754 [2007];Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344 [2003]).However, "[a] defendant can rebut a process server's affidavit by a detailed and specificcontradiction of the allegations in the process server's affidavit" (Bankers Trust Co.of Cal. v Tsoukas, 303 AD2d at 344; see Mortgage Access Corp. v Webb, 11 AD3d 592, 592[2004]).
Here, the affidavits of the plaintiff's process server constituted prima facie evidenceof proper service pursuant to CPLR 308 (2) (see Bank of N.Y. Mellon v Scura, 102 AD3d 714 [2013]).Contrary to the defendants' contention, they failed to rebut this presumption of properservice since they did not, in their affidavits submitted in support of their motion, swearto "specific facts to rebut the statements" in the process server's affidavit (Scarano v Scarano, 63 AD3d716, 716 [2009] [internal quotation marks omitted]; see Bank of N.Y. Mellon vScura, 102 AD3d 714 [2013]; see also Roberts v Anka, 45 AD3d at754). Accordingly, the Supreme Court properly denied the defendants' motion to vacatethe default judgment and dismiss the complaint on the ground of lack of personaljurisdiction. Skelos, J.P., Balkin, Cohen and Miller, JJ., concur.