| Mortgage Elec. Registration Sys., Inc. v Losco |
| 2015 NY Slip Op 01250 [125 AD3d 733] |
| February 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Mortgage Electronic Registration Systems, Inc., asNominee for Wachovia Mortgage Corporation, Respondent, v Michael Losco,Appellant, et al., Defendants. |
Maffei Maffei & Keating, Yonkers, N.Y. (Matthew J. Keating of counsel), forappellant.
Hogan Lovells US, LLP, New York, N.Y. (Chava Brandriss, David Dunn, andHeather R. Gushue of counsel), for respondent.
In an action to cancel and vacate a satisfaction of mortgage, the defendant MichaelLosco appeals, as limited by his brief, from stated portions of an order and judgment (onepaper) of the Supreme Court, Westchester County (Walker, J.), dated June 24, 2013,which, inter alia, granted that branch of the plaintiff's motion which was, in effect, forleave to enter a default judgment against him upon his failure to timely appear or answerthe complaint, and denied his cross motion pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against him for lack of personal jurisdiction.
Ordered that the order and judgment is affirmed insofar as appealed from, withcosts.
"A process server's affidavit of service constitutes prima facie evidence of properservice" (Scarano vScarano, 63 AD3d 716, 716 [2009]; see NYCTL 2009-A Trust v Tsafatinos, 101 AD3d 1092,1093 [2012]; CountrywideHome Loans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]). "Although adefendant's sworn denial of receipt of service generally rebuts the presumption of properservice established by the process server's affidavit and necessitates an evidentiaryhearing, no hearing is required where the defendant fails to swear to specific facts torebut the statements in the process server's affidavits" (Countrywide Home LoansServicing, LP v Albert, 78 AD3d at 984-985 [internal quotation marks and citationomitted]; see Edwards, Angell,Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825 [2014];Simonds v Grobman, 277 AD2d 369, 370 [2000]). Here, the affidavit of serviceof the plaintiff's process server constituted prima facie evidence of proper service on theappellant pursuant to CPLR 308 (1) (see Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112AD3d 813, 814 [2013]). The appellant's affidavit was insufficient to rebut thepresumption of proper service created by the process server's affidavit (see Carver Fed. Sav. Bank vSupplice, 109 AD3d 572, 572-573 [2013]; Deutsche Bank Natl. Trust Co. v Jagroop, 104 AD3d 723,724 [2013]). Moreover, the additional affidavit submitted by the appellant in support ofhis cross motion to dismiss the complaint insofar as asserted against him was improperlysubmitted for the first time in reply (see Board of Mgrs. of Foundry at Washington Park Condominium vFoundry Dev. Co., Inc., 111 AD3d 776, 777 [2013]). Accordingly, the SupremeCourt properly granted that branch of the plaintiff's motion which was, in effect, forleave [*2]to enter a default judgment against theappellant upon his failure to timely appear or answer the complaint, and denied theappellant's cross motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofaras asserted against him for lack of personal jurisdiction. Rivera, J.P., Hall, Roman,Cohen and Barros, JJ., concur.