| U.S. Bank N.A. v Losner |
| 2015 NY Slip Op 00869 [125 AD3d 640] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank National Association,Respondent, v Ronald B. Losner, Appellant, et al.,Defendants. |
Biolsi Law Group P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), forappellant.
Knuckles, Komosinski & Elliott LLP, Elmsford, N.Y. (Christopher Messina ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Ronald B. Losner appeals froman order of the Supreme Court, Queens County (Butler, J.), entered August 26, 2014,which denied his motion to vacate a judgment of foreclosure and sale of the same courtentered July 11, 2008, which had been entered upon his failure to answer thecomplaint.
Ordered that the order is affirmed, with costs.
The defendant Ronald B. Losner (hereinafter the defendant) sought to vacate ajudgment of foreclosure and sale, which had been entered upon his failure to answer thecomplaint, on the ground of lack of personal jurisdiction. Pursuant to CPLR 5015 (a) (4),a judgment entered upon a movant's default must be vacated once the movantdemonstrates lack of jurisdiction (see Hossain v Fab Cab Corp., 57 AD3d 484 [2008]; Matter of Qadeera Tonezia D.,55 AD3d 606 [2008]). Although a process server's affidavit of service ordinarilyconstitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d1074 [2010]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344[2003]), a defendant may rebut the prima facie showing with a sworn denial of receipt ofprocess containing specific facts to refute the process server's affidavit (see BankersTrust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]; see also Deutsche Bank Natl. TrustCo. v Pestano, 71 AD3d 1074 [2010]; Wern v D'Alessandro, 219 AD2d646 [1995]; Frankel v Schilling, 149 AD2d 657 [1989]). Here, the SupremeCourt correctly determined that the defendant's affidavit was insufficient to rebut theprocess server's affidavit, and therefore, properly denied the defendant's motion to vacatethe judgment of foreclosure and sale. Rivera, J.P., Hall, Roman, Cohen and Barros, JJ.,concur.