Dime Sav. Bank of New York v. Steinman
| Citation | 613 N.Y.S.2d 945,206 A.D.2d 404 |
| Parties | DIME SAVINGS BANK OF NEW YORK, Respondent, v. Evan STEINMAN, et al., Appellants, et al., Defendants. |
| Decision Date | 11 July 1994 |
| Court | New York Supreme Court Appellate Division |
Mitchell E. Silbowitz, New York City, for appellants.
Certilman Balin Adler & Hyman, East Meadow (Bruce J. Bergman, Michael C. Manniello, and Lawrence Novak, of counsel), for respondent.
Before BRACKEN, J.P., and ALTMAN, KRAUSMAN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In a mortgage foreclosure action, the defendants Evan Steinman and Donna Steinman appeal from (1) an order of the Supreme Court, Nassau County (Saladino, J.), dated October 16, 1992, which denied their motion to vacate a judgment of foreclosure and sale entered upon their default in answering the complaint, and (2) an order of the same court, dated February 3, 1993, which denied their motion for reargument.
ORDERED that the appellants are awarded one bill of costs.
The sworn denials of the appellants that they had been served with process pursuant to CPLR 308(2), as alleged by the plaintiff's process server, requires a hearing to determine whether they were in fact properly served (see, Green Point Sav. Bank v. Taylor, 92 A.D.2d 910, 460 N.Y.S.2d 121). "The affidavit of service * * * is not conclusive once there has been a sworn denial of receipt" (Empire Nat. Bank v. Judal Constr. of N.Y., 61 A.D.2d 789, 789-790, 401 N.Y.S.2d 852). Accordingly, the Supreme Court erred in failing to hold a hearing on the issue of whether the appellants were properly served with process pursuant to CPLR 308(2). The "burden of proving jurisdiction is upon the party asserting it and when challenged that party must sustain that burden by preponderating evidence" (Green Point Sav. Bank v. Taylor, supra, 92 A.D.2d at 910, 460 N.Y.S.2d 121; Jacobs v. Zurich Ins. Co., 53 A.D.2d 524, 384 N.Y.S.2d 452; see also, Saratoga Harness Racing Assn. v. Moss, 26 A.D.2d 486, 490, 275 N.Y.S.2d 888, affd. 20 N.Y.2d 733, 283 N.Y.S.2d 55, 229 N.E.2d 620; Weinberg v. Hillbrae...
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