| Nationstar Mtge., LLC v Kamil |
| 2017 NY Slip Op 08276 [155 AD3d 966] |
| November 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC, Respondent, v MuhammadT. Kamil, Appellant, et al., Defendants. |
Bhatia & Associates, PLLC, New York, NY (Satish K. Bhatia of counsel), forappellant.
Fein, Such & Crane, LLP, Westbury, NY (Michael S. Hanusek of counsel), andSandelands Eyet LLP, New York, NY (Mitchell Zipkin of counsel), for respondent (one brieffiled).
In an action to foreclose a mortgage, the defendant Muhammad T. Kamil appeals from anorder of the Supreme Court, Nassau County (Adams, J.), entered December 2, 2014, whichdenied his motion, in effect, to vacate his default in appearing or answering the complaint and todismiss the complaint insofar as asserted against him or, in the alternative, pursuant to CPLR2004 and 3012 (d) to extend the time to file an answer.
Ordered that the order is affirmed, with costs.
In 2003, the defendant Muhammad T. Kamil (hereinafter the defendant) borrowed the sum of$259,000 from Greenpoint Mortgage Funding, Inc. (hereinafter Greenpoint), and in returnexecuted a 30-year, fixed-rate note in that amount, which was secured by a mortgage given toMortgage Electronic Registration Systems, Inc., as nominee for Greenpoint. After the defendantdefaulted on the loan by failing to make the monthly mortgage payment due February 2010, theplaintiff, as holder of the note, commenced this foreclosure action. The defendant failed to appearor answer the complaint within the time allowed (see CPLR 320), and failed to appear ata mandatory conference (see CPLR 3408; Uniform Rules for Trial Courts [22 NYCRR]§ 202.12-a [c] [1]). The defendant subsequently moved to vacate his default for lackof personal jurisdiction on the basis that he was never served with process. The Supreme Courtdenied the motion, and the defendant appeals. We affirm.
CPLR 308 (2) provides, in pertinent part, that personal service upon a natural person may bemade "by delivering the summons within the state to a person of suitable age and discretion at theactual place of business, dwelling place or usual place of abode of the person to be served and by. . . mailing the summons to the person to be served at his or her last knownresidence." "Valid service pursuant to CPLR 308 (2) may be made by delivery of the summonsand complaint to a person of suitable age and discretion who answers the door at a defendant'sresidence, but is not a resident of the subject property" (Bank of N.Y. v Espejo, 92 AD3d 707, 708 [2012]).
A process server's affidavit of service constitutes prima facie evidence of proper service (see Summitbridge Credit Invs., LLC vWallace, 128 AD3d 676 [2015]; JPMorgan Chase Bank, [*2]N.A. vTodd, 125 AD3d 933 [2015]). "Although a defendant's sworn denial of receipt of servicegenerally rebuts the presumption of proper service established by a process server's affidavit andnecessitates an evidentiary hearing, no hearing is required where the defendant fails to swear tospecific facts to rebut the statements in the process server's affidavits" (Deutsche Bank Natl. Trust Co. vQuinones, 114 AD3d 719, 719 [2014]; see Bank of N.Y. v Samuels, 107 AD3d 653 [2013]).
Here, the process server's affidavit of service contained sworn allegations reciting thatservice was made upon the defendant by leaving the relevant papers with a person of suitable ageand discretion, namely "Sabir Ahmad, male relative," at the defendant's residence, and bysubsequently mailing a second copy of the papers to the defendant at the same address (seeCPLR 308 [2]). Accordingly, the affidavit of service constituted prima facie evidence ofservice of the summons and complaint pursuant to CPLR 308 (2) (see U.S. Bank N.A. v Telford, 153AD3d 881, 881-882 [2017]; USBank N.A. v Ramos, 153 AD3d 882, 884 [2017]).
Contrary to the defendant's contention, his affidavit failed to rebut the presumption of properservice arising from the process server's affidavit as to service upon him. While the defendantdenied knowledge of any person by the name of "Sabir Ahmad," and asserted that no one by thatname ever resided at the premises, he did not rebut the process server's sworn allegation that aperson fitting the physical description of Sabir Ahmad was present at the subject property at thetime and accepted service on behalf of the defendant (see US Bank N.A. v Ramos, 153AD3d at 884; Washington Mut. Bank vHuggins, 140 AD3d 858, 859 [2016]; Bank of N.Y. v Espejo, 92 AD3d at 708;cf. Wachovia Bank, N.A. vGreenberg, 138 AD3d 984, 985 [2016]). Moreover, the defendant's conclusory assertionthat he did not receive the mailed papers was similarly inadequate to overcome the inference ofproper mailing that arose from the affidavit (see Washington Mut. Bank v Huggins, 140AD3d at 859; European Am. Bank v Abramoff, 201 AD2d 611, 612 [1994]).
The defendant's remaining contentions are without merit. Eng, P.J., Rivera, Roman andConnolly, JJ., concur.