Bank of Am., N.A. v. Tobing

• Decision Date: 28 December 2016
• Citation: 45 N.Y.S.3d 133,145 A.D.3d 941,2016 N.Y. Slip Op. 08829
• Parties: BANK OF AMERICA, N.A., etc., respondent, v. Richard TOBING, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 941

45 N.Y.S.3d 133

2016 N.Y. Slip Op. 08829

BANK OF AMERICA, N.A., etc., respondent,

v.Richard TOBING, appellant, et al., defendants.

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

Dec. 28, 2016.

Nicholas M. Moccia, P.C., Staten Island, NY, for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Megan K. McNamara of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.

In an action pursuant to RPAPL article 15 to vacate a satisfaction of mortgage dated December 27, 2010, the defendant Richard Tobing appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated April 17, 2014, as denied, without a hearing, that branch of his cross motion which was pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him for 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 the issue of whether the defendant Richard Tobing was properly served with process pursuant to CPLR 308(2), and a new determination thereafter of that branch of his cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction based on improper service of process.

The plaintiff commenced this action to vacate a satisfaction of mortgage which allegedly was erroneously issued in favor of the defendant mortgagor, Richard Tobing, in 2010. According to the process server's affidavit of service, the summons and complaint in the action were served upon Tobing by leaving them with Mirna Blanco, who was described as Tobing's "co-resident," at Tobing's dwelling place/usual place of abode in Staten 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 complaint insofar as asserted against him on the ground that he was not properly served with process. 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 the defendant was validly served (see American Home Mtge. Servicing, Inc. v. Gbede, 127 A.D.3d 1004, 5 N.Y.S.3d 879 ; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 ). "While bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing" (Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 [citations omitted]; see Teitelbaum v. North Shore–Long Is. Jewish Health Sys., Inc., 123 A.D.3d 1006, 1007, 999 N.Y.S.2d 871 ; ...