Countrywide Home Loans Servicing, LP v. Albert

• Decision Date: 23 November 2010
• Citation: 78 A.D.3d 983,912 N.Y.S.2d 96
• Parties: COUNTRYWIDE HOME LOANS SERVICING, LP, etc., respondent, v. Linda ALBERT, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 96

78 A.D.3d 983

COUNTRYWIDE HOME LOANS SERVICING, LP, etc., respondent,

v.Linda ALBERT, appellant, et al., defendants.

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

Nov. 23, 2010.

Linda Albert, Mahopac, N.Y., appellant pro se.

Steven J. Baum, P.C., Buffalo, N.Y. (Morgan Taylor of counsel), for respondent.

MARK C. DILLON, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ.

In an action to foreclose a mortgage, the defendant Linda Albert appeals from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated April 15, 2009, as denied that branch of her motion which was to vacate a judgment of foreclosure and sale dated October 10, 2008.

ORDERED that the order is affirmed insofar as appealed from, with costs.

" 'An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer' " ( Ohio Sav. Bank v. Munsey, 34 A.D.3d 659, 659, 826 N.Y.S.2d 321, quoting Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 140, 502 N.Y.S.2d 479; see CPLR 320; National Loan Invs., L.P. v. Piscitello, 21 A.D.3d 537, 537-538, 801 N.Y.S.2d 331). " 'By statute, a party may appear in an action by attorney (CPLR 321), and such an appearance constitutes an appearance by the party for purposes of conferring jurisdiction' " ( National Loan Invs., L.P. v. Piscitello, 21 A.D.3d at 537-538, 801 N.Y.S.2d 331, quoting Skyline Agency v. Coppotelli, Inc., 117 A.D.2d at 140, 502 N.Y.S.2d 479). It is undisputed that the attorney formerly representing the defendant Linda Albert (hereinafter the defendant) filed a notice of appearance on her behalf in this action, and that neither the defendant nor her attorney moved to dismiss the complaint on the ground of lack of personal jurisdiction or asserted lack of personal jurisdiction in a responsive pleading ( see Ohio Sav. Bank v. Munsey, 34 A.D.3d at 659, 826 N.Y.S.2d 321). Accordingly, the defendant waived any claim that the Supreme Court lacked personal jurisdiction over her in this action ( id. at 659-660, 826 N.Y.S.2d 321; see Matter of Woicik v. Town of E. Hampton, 207 A.D.2d 356, 357, 615 N.Y.S.2d 447). In any event, the defendant's claim that she was not properly served in this action is without merit. "Service of process must be made in strict compliance with statutory 'methods for effecting personal service upon a natural person' pursuant to CPLR 308" ( Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462, quoting Macchia v. Russo, 67 N.Y.2d 592, 594, 505 N.Y.S.2d 591, 496 N.E.2d 680; see Dorfman v. Leidner, 76 N.Y.2d 956, 958, 563 N.Y.S.2d 723, 565 N.E.2d 472). "A process server's affidavit of service constitutes prima facie evidence of proper service" ( Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682). "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 ( see Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479), no hearing is required where the defendant fails to swear to 'specific facts to rebut the statements in the processserver's affidavits' " ( Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682, quoting Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692). Here, the defendant's claims were insufficient to rebut the prima facie proof of proper servicepursuant to CPLR 308(4) created by the process server's affidavit and to warrant a hearing to determine the validity of service of process ( see City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643; Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682).

The Supreme Court properly declined to consider the reply papers submitted by the defendant in further support of her motion, inter alia, to vacate a judgment of foreclosure and sale dated October 10, 2008. Under the circumstances of this case, and based on demands set forth in the defendant's notice of motion, the defendant's reply...