| Carver Fed. Sav. Bank v Supplice |
| 2013 NY Slip Op 05669 [109 AD3d 572] |
| August 21, 2013 |
| Appellate Division, Second Department |
| Carver Federal Savings Bank,Respondent, v Terrence Supplice, Jr., Also Known as Junior Supplice,Appellant, et al., Defendants. |
—[*1] Druckman Law Group PLLC, Westbury, N.Y. (Hans H. Augustin of counsel), forrespondent.
In an action to foreclose two mortgages, the defendant Terrence Supplice, Jr., alsoknown as Junior Supplice, appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Queens County (Gavrin, J.), dated August 18, 2011, as denied,without a hearing, those branches of his motion which were pursuant to CPLR 5015 (a)(4) to vacate an order of reference of the same court (Flaherty, J.) dated September 9,2009, entered upon his default in appearing or answering the complaint, and, in effect,pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against himfor lack of personal jurisdiction.
Ordered that the order dated August 18, 2011, is affirmed insofar as appealed from,with costs.
The Supreme Court properly denied, without a hearing, those branches of theappellant's motion which were pursuant to CPLR 5015 (a) (4) to vacate an order ofreference, and, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofaras asserted against him for lack of personal jurisdiction. The affidavit of the processserver constituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see Bank of N.Y. v Espejo, 92AD3d 707, 708 [2012]; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d984, 984 [2009]). In opposition, the appellant's affidavit was insufficient to rebut thepresumption of proper service created by the process server's affidavit (see Deutsche Bank Natl. Trust Co.v Jagroop, 104 AD3d 723, 724 [2013]; Bank of N.Y. v Espejo, 92AD3d at 708; cf. Toyota MotorCredit Corp. v Lam, 93 AD3d 713, 714 [2012]; U.S. Bank, N.A. v Arias, 85AD3d 1014, 1016 [2011]).
In light of the foregoing, we need not reach the appellant's remaining contentions.Dillon, J.P., Roman, Miller and Hinds-Radix, JJ., concur.
Motion by the appellant, on an appeal from an order of the Supreme Court, QueensCounty, dated August 18, 2011, to strike stated portions of the respondent's brief on theground that they refer to matter dehors the record or improperly raise arguments for thefirst time on appeal. By decision and order on motion of this Court dated May 28, 2013,the motion was held in abeyance and referred to the panel of Justices hearing the appealfor determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the submission of the appeal, it is
Ordered that the motion is granted and those portions of the respondent's brief thatrefer to matter dehors the record or improperly raise arguments for the first time onappeal are stricken and have not been considered in the determination of this appeal.Dillon, J.P., Roman, Miller and Hinds-Radix, JJ., concur.