Home Federal Sav. Bank v. Mahood

• Decision Date: 12 April 1999
• Citation: 686 N.Y.S.2d 717
• Parties: 1999 N.Y. Slip Op. 3247 HOME FEDERAL SAVINGS BANK, Respondent, v. Willard S. MAHOOD, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 717

686 N.Y.S.2d 717

1999 N.Y. Slip Op. 3247

HOME FEDERAL SAVINGS BANK, Respondent, v. Willard S. MAHOOD, et al., Appellants.

Supreme Court of New York, Appellate Division,

Second Department.

April 12, 1999.

John R. Kelligrew, White Plains, N.Y., for appellants.

R. Bruce Claro, Flushing, N.Y., for respondent.

In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Suffolk County (Lifson, J.), dated February 11, 1998, which, following a hearing to determine the propriety of service of process, denied their motion to vacate a default judgment of foreclosure and sale.

ORDERED that the order is affirmed, with costs.

Contrary to the defendants' contentions, the plaintiff satisfied its evidentiary burden at the hearing to determine the propriety of service of process (see, Meagher v. ARA Serv., 242 A.D.2d 286, 660 N.Y.S.2d 739; Wern v. D'Alessandro, 219 A.D.2d 646, 631 N.Y.S.2d 425) and established that jurisdiction was properly acquired over the defendants. The credible testimony of the process server demonstrated that service had been made upon the defendant Millicent R. Mahood, at her home, within minutes after the conceded service personally made upon the defendant Willard S. Mahood (see, Miller v. Irwin, 202 A.D.2d 344, 610 N.Y.S.2d 780). While the defendants offered conclusory testimony that the defendant Millicent R. Mahood was not served, this conflicting evidence raised a credibility issue. The hearing court's credibility determination is entitled to great weight on appeal (see, Miale v. Miale, --- A.D.2d ----, 682 N.Y.S.2d 918; Federal Natl. Mtge. Assn. v. Roth, 240 A.D.2d 466, 659 N.Y.S.2d 784). Since it is amply supported by the record, it will not be disturbed (see, Avco Mtge. Co. of N.Y. v. Ward, --- A.D.2d ----, 679 N.Y.S.2d 841; Leonard v. Grimes, 246 A.D.2d 630, 667 N.Y.S.2d 317; Key Bank USA v. Klein, 243 A.D.2d 688, 664 N.Y.S.2d 569).

The defendants' remaining contentions are without merit.

ALTMAN, J.P., FRIEDMANN, McGINITY and LUCIANO, JJ., concur.