Deutsche Bank Nat'l Trust Co. v. Quinones

• Decision Date: 13 February 2014
• Citation: 2014 N.Y. Slip Op. 00959,981 N.Y.S.2d 107,114 A.D.3d 719
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Jose QUINONES, et al., defendants, Johnny Ferreira, respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 719

981 N.Y.S.2d 107

2014 N.Y. Slip Op. 00959

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant,

v.Jose QUINONES, et al., defendants, Johnny Ferreira, respondent.

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

Feb. 13, 2014.

Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for appellant.

David J. Broderick, P.C., Forest Hills, N.Y. (Kenneth R. Berman of counsel), for respondent.

MARK C. DILLON, J.P., SHERI S. ROMAN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Weiss, J.), dated June 22, 2011, which granted the motion of the defendant Johnny Ferreira, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court entered February 6, 2009, upon his failure to appear or answer the complaint, to set aside the foreclosure sale of the subject property pursuant to the judgment, and, in effect, to dismiss the complaint insofar as asserted against that defendant for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Johnny Ferreira is denied.

A process server's affidavit of service constitutes prima facie evidence of proper service ( see Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254;Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a 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” ( City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643;see Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543;US Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352).

Here, the affidavit of service indicating that the respondent was served pursuant to CPLR 308(2) by delivery of the papers to a person of suitable age and discretion was insufficient on its face to establish, prima facie, that the respondent was validly served pursuant to that section. However, a second affidavit of service constituted prima facie evidence of proper service of the summons and complaint pursuant to CPLR 308(1) ( see Reich v. Redley, 96 A.D.3d 1038, 947 N.Y.S.2d 564), and of proper service of the notice required by ...