| Washington Mut. Bank v Huggins |
| 2016 NY Slip Op 04406 [140 AD3d 858] |
| June 8, 2016 |
| Appellate Division, Second Department |
[*1]
| Washington Mutual Bank,Appellant, v Matthews Huggins, Respondent, et al.,Defendants. |
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (David V. Mignardiof counsel), for appellant.
Biolsi Law Group P.C., New York, NY (Steven Alexander Biolsi of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals (1), as limited by its brief,from so much of an order of the Supreme Court, Kings County (F. Rivera, J.), dated July25, 2014, as directed a hearing on that branch of the cross motion of the defendantMatthews Huggins which was pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against him for lack of personal jurisdiction, and (2) from an order ofthe same court dated September 23, 2014, which, after a hearing, granted that branch ofthe cross motion of the defendant Matthews Huggins which was pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction.
Ordered that on the Court's own motion, the plaintiff's notice of appeal from so muchof the order dated July 25, 2014, as directed a hearing on that branch of the cross motionof the defendant Matthews Huggins which was pursuant to CPLR 3211 (a) (8) to dismissthe complaint insofar as asserted against him for lack of personal jurisdiction is deemedto be an application for leave to appeal from that portion of the order, and leave to appealfrom that portion of the order is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order dated July 25, 2014, is reversed insofar as appealed from, onthe law, that branch of the cross motion of the defendant Matthews Higgins which waspursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against himfor lack of personal jurisdiction is denied, and the order dated September 23, 2014, isvacated; and it is further,
Ordered that the appeal from the order dated September 23, 2014, is dismissed asacademic in light of our determination on the appeal from the order dated July 25, 2014;and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
A process server's affidavit of service constitutes prima facie evidence of validservice (see American HomeMtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005 [2015]; Velez v Forcelli, 125 AD3d643, 644 [2015]; Edwards,Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825 [2014]).A mere conclusory denial of service is insufficient to rebut the presumption of properservice arising [*2]from the process server's affidavit (see Matter of Romero vRamirez, 100 AD3d 909, 910 [2012]; Scarano v Scarano, 63 AD3d 716, 716 [2009]). In order towarrant a hearing to determine the validity of service of process, the denial of servicemust be substantiated by specific, detailed facts that contradict the affidavit of service (see e.g. Wachovia Bank, N.A. vGreenberg, 138 AD3d 984, 985 [2016]; Machovec v Svoboda, 120 AD3d 772 [2014]; Wells Fargo Bank, N.A. vChristie, 83 AD3d 824 [2011]).
Here, the affidavit of service contained sworn allegations reciting that service wasmade upon the defendant Matthews Huggins (hereinafter the defendant) by leaving therelevant papers with a person of suitable age and discretion, who identified himself as"Mr. Salas," at the defendant's residence, and by subsequently mailing a second copy ofthe papers to the defendant at the same address. Contrary to the determination of theSupreme Court, the defendant's submissions failed to rebut the affidavit of service, sincethey merely denied knowledge of a person named "Mr. Salas" and asserted that thedefendant lived alone, but did not rebut the sworn allegation that a person fitting thephysical description of "Mr. Salas" was present at the residence at the time and acceptedservice on behalf of the defendant (see Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2012]; Roberts v Anka, 45 AD3d752, 754 [2007]; Granite Mgt. & Disposition v Sun, 221 AD2d 186,187 [1995]; cf. Wachovia Bank, N.A. v Greenberg, 138 AD3d at 985; WellsFargo Bank, N.A. v Christie, 83 AD3d at 824). Moreover, the defendant's conclusoryassertion that he did not receive the mailed papers was similarly inadequate to overcomethe inference of proper mailing that arose from the affidavit (see European Am. Bankv Abramoff, 201 AD2d 611, 612 [1994]; Colon v Beekman DowntownHosp., 111 AD2d 841, 841 [1985]). Accordingly, a hearing to determine the validityof service of process was not warranted under the circumstances of this case, the orderdirecting that hearing must be reversed, and the order made after the hearing must bevacated. Mastro, J.P., Sgroi, Duffy and Brathwaite Nelson, JJ., concur.