| American Home Mtge. Servicing, Inc. v Gbede |
| 2015 NY Slip Op 03309 [127 AD3d 1004] |
| April 22, 2015 |
| Appellate Division, Second Department |
[*1]
| American Home Mortgage Servicing, Inc.,Respondent, v Azeez Gbede, Appellant, et al.,Defendants. |
Alice A. Nicholson, Brooklyn, N.Y., for appellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Khaedeen I. Shillingford andSchuyler B. Kraus of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Azeez Gbede appeals from anorder of the Supreme Court, Queens County (Kitzes, J.), entered February 25, 2013,which granted the plaintiff's motion, in effect, for summary judgment on the complaint,and denied those branches of his cross motion which were pursuant to CPLR 3211 (a)(8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction and pursuant to CPLR 3012 (d) for leave to serve and file a late answer.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Queens County, for further proceedings consistent herewith.
"A process server's affidavit of service constitutes prima facie evidence of properservice" (Scarano vScarano, 63 AD3d 716, 716 [2009]). "Although a defendant's sworn denial ofreceipt of service generally rebuts the presumption of proper service established by theprocess server's affidavit and necessitates an evidentiary hearing, no hearing is requiredwhere the defendant fails to swear to 'specific facts to rebut the statements in the processserver's affidavits' " (id., quoting Simonds v Grobman, 277 AD2d369, 370 [2000] [citation omitted]; see Bank of N.Y. v Samuels, 107 AD3d 653, 653[2013]).
The affidavit of service of the plaintiff's process server established, prima facie, thatthe defendant was properly served pursuant to CPLR 308 (1) with copies of thesummons, notice, and complaint. In opposition, however, the defendant's affidavitdenying receipt of those papers, and his averment that he was at his place of employmentin New York County at the time of the alleged service, were sufficient to rebut thepresumption of proper service.
The plaintiff's remaining contention is without merit.
Therefore, the Supreme Court should have directed a hearing to determine whetherthe appellant was properly served with process (see Edwards, Angell, Palmer & Dodge, LLP v Gerschman,116 AD3d 824 [2014]; Dime Sav. Bank of Williamsburg v 146 Ross Realty, LLC, 106AD3d 863, 864 [2013]; Toyota Motor Credit Corp. v Lam, 93 AD3d 713, 714[2012]; U.S. Bank, N.A. v Arias, 85 AD3d [*2]1014, 1015-1016 [2011]). Accordingly, we remit the matterto the Supreme Court, Queens County, for a hearing to determine whether the appellantwas properly served with process pursuant to CPLR 308 (1), and, thereafter, a newdetermination of the motion and the cross motion. Balkin, J.P., Austin, LaSalle andBarros, JJ., concur.