| Bank of Am., N.A. v Tobing |
| 2016 NY Slip Op 08829 [145 AD3d 941] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1](December 28, 2016)
| Bank of America, N.A., Successor by Merger to BACHome Loans Servicing, L.P., Formerly Known as Countrywide Home Loans Servicing,LP, Respondent, v Richard Tobing, Appellant, et al.,Defendants. |
Nicholas M. Moccia, P.C., Staten Island, NY, for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (MeganK. McNamara of counsel), for respondent.
In an action pursuant to RPAPL article 15 to vacate a satisfaction of mortgage datedDecember 27, 2010, the defendant Richard Tobing appeals, as limited by his brief, fromso much of an order of the Supreme Court, Richmond County (Minardo, J.), dated April17, 2014, as denied, without a hearing, that branch of his cross motion which waspursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against himfor lack of personal jurisdiction based on improper service of process.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the matter is remitted to the Supreme Court, Richmond County, for a hearing on theissue of whether the defendant Richard Tobing was properly served with processpursuant to CPLR 308 (2), and a new determination thereafter of that branch of his crossmotion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against him for lack of personal jurisdiction based on improper service ofprocess.
The plaintiff commenced this action to vacate a satisfaction of mortgage whichallegedly was erroneously issued in favor of the defendant mortgagor, Richard Tobing, in2010. According to the process server's affidavit of service, the summons and complaintin the action were served upon Tobing by leaving them with Mirna Blanco, who wasdescribed as Tobing's "co-resident," at Tobing's dwelling place/usual place of abode inStaten Island on May 4, 2013. During the ensuing motion practice between the parties,Tobing cross-moved, inter alia, pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against him on the ground that he was not properly served withprocess. The Supreme Court denied that branch of the cross motion without a hearing.We reverse insofar as appealed from.
Ordinarily, the affidavit of a process server constitutes prima facie evidence that thedefendant was validly served (see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d1004 [2015]; Velez vForcelli, 125 AD3d 643, 644 [2015]). "While bare and unsubstantiated denialsare insufficient to rebut the presumption of service, a sworn denial of service containingspecific facts generally rebuts [*2]the presumption ofproper service established by the process server's affidavit and necessitates an evidentiaryhearing" (Wachovia Bank, N.A.v Greenberg, 138 AD3d 984, 985 [2016] [citations omitted]; see Teitelbaum v NorthShore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006, 1007 [2014]; Machovec v Svoboda, 120AD3d 772, 773 [2014]; Dime Sav. Bank of Williamsburg v 146 Ross Realty, LLC, 106AD3d 863, 864 [2013]).
Here, Tobing rebutted the presumption of valid service arising from the processserver's affidavit by submitting his own specific, factually detailed, sworn affidavit inwhich he denied residing at the subject address in Staten Island and averred that he hadresided at a different address in Staten Island at all relevant times. He also noted that thesatisfaction of mortgage which the plaintiff sought to vacate listed the address where heclaimed to reside at all relevant times. Additionally, Tobing's affidavit averred that MirnaBlanco was his tenant, and that she does not reside with him. Under these circumstances,a hearing on the issue of whether Tobing was properly served was warranted (seeWachovia Bank, N.A. v Greenberg, 138 AD3d at 985; Edwards, Angell, Palmer &Dodge, LLP v Gerschman, 116 AD3d 824, 825-826 [2014]; Deutsche Bank Natl. Trust Co. vDaCosta, 97 AD3d 630, 632 [2012]; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1016 [2011]; Wells Fargo Bank, N.A. vChristie, 83 AD3d 824, 825 [2011]; Deutsche Bank Natl. Trust Co. v Pestano, 71 AD3d 1074,1075 [2010]). Rivera, J.P., Chambers, Roman and Brathwaite Nelson, JJ., concur.