| Deutsche Bank Natl. Trust Co. v Quinones |
| 2014 NY Slip Op 00959 [114 AD3d 719] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Appellant, v Jose Quinones et al., Defendants, and Johnny Ferreira,Respondent. |
—[*1] David J. Broderick, P.C., Forest Hills, N.Y. (Kenneth R. Berman of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Weiss, J.), dated June 22, 2011, which granted themotion of the defendant Johnny Ferreira, in effect, pursuant to CPLR 5015 (a) (4) tovacate a judgment of foreclosure and sale of the same court entered February 6, 2009,upon his failure to appear or answer the complaint, to set aside the foreclosure sale of thesubject property pursuant to the judgment, and, in effect, to dismiss the complaint insofaras asserted against that defendant for lack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the motion of thedefendant Johnny Ferreira is denied.
A process server's affidavit of service constitutes prima facie evidence of properservice (see Emigrant Mtge.Co., Inc. v Westervelt, 105 AD3d 896, 897 [2013]; Wells Fargo Bank, NA vChaplin, 65 AD3d 588, 589 [2009]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d983, 984 [2010]). "Although a defendant's sworn denial of receipt of servicegenerally rebuts the presumption of proper service established by a process server'saffidavit and necessitates an evidentiary hearing, no hearing is required where thedefendant fails to swear to specific facts to rebut the statements in the process server'saffidavits" (City of New York vMiller, 72 AD3d 726, 727 [2010]; see Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743 [2011]).
Here, the affidavit of service indicating that the respondent was served pursuant toCPLR 308 (2) by delivery of the papers to a person of suitable age and discretion wasinsufficient on its face to establish, prima facie, that the respondent was validly servedpursuant to that section. However, a second affidavit of service constituted prima facieevidence of proper service of the summons and complaint pursuant to CPLR 308 (1) (see Reich v Redley, 96 AD3d1038 [2012]), and of proper service of the notice required by Real Property Actionsand Proceedings Law § 1303 (see U.S. Bank N.A. v Tate, 102 AD3d 859 [2013]). Therespondent's bare and unsubstantiated denial of service [*2]lacked the factual specificity and detail required to rebut theprima facie proof of proper service set forth in that affidavit of service (see ACT Props., LLC vGarcia, 102 AD3d 712, 713 [2013]; Scarano v Scarano, 63 AD3d 716, 716-717[2009]).
The parties' remaining contentions either are without merit, are not properly beforethis Court, or need not be reached in light of our determination.
Accordingly, the Supreme Court should have denied the respondent's motion, ineffect, pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosure and saleentered upon his failure to appear or answer the complaint, to set aside the foreclosuresale of the property, and, in effect, to dismiss the complaint insofar as asserted againsthim for lack of personal jurisdiction. Dillon, J.P., Roman, Miller and Hinds-Radix, JJ.,concur. [Prior Case History: 2011 NY Slip Op 31284(U).]