BAC Home Loans Servicing, LP v. Carrasco, 2015–12172

• Decision Date: 11 April 2018
• Docket Number: Index No. 5431/10,2015–12179,2015–12176,2015–12172
• Citation: 71 N.Y.S.3d 366 (Mem),160 A.D.3d 688
• Parties: BAC HOME LOANS SERVICING, LP, etc., appellant, v. Andres H. CARRASCO, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 688

71 N.Y.S.3d 366 (Mem)

BAC HOME LOANS SERVICING, LP, etc., appellant,

v.Andres H. CARRASCO, respondent, et al., defendants.

2015–12172

2015–12176

2015–12179

Index No. 5431/10

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 8, 2017

April 11, 2018

Sandelands Eyet, LLP, New York, N.Y. (William C. Sandelands, Laurence P. Chirch, and Kieran M. Dowling of counsel), for appellant.

Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER

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, Queens County (Frederick D.R. Sampson, J.), entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, (2) from an order of the same court entered February 10, 2015, which, after a hearing, in effect, granted that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and (3), as limited by its brief, from so much of an order of the same court entered October 22, 2015, as denied that branch of its motion which was for leave to reargue.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order entered October 14, 2014, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is denied, and the order entered February 10, 2015, is vacated; and it is further,

ORDERED that the appeal from the order entered February 10, 2015, is dismissed as academic in light of our determination on the appeal from the order entered October 14, 2014; and it is further,ORDERED that the appeal from so much of the order entered October 22, 2015, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v. Svoboda , 120 A.D.3d 772, 772, 992 N.Y.S.2d 279 ; Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC , 112 A.D.3d 813, 814, 977 N.Y.S.2d 351 ). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server's affidavits' " ( Scarano v. Scarano , 63 A.D.3d 716, 716, ...