HSBC Bank United States, N.A. v. Hanchard

• Decision Date: 26 March 2019
• Docket Number: M-278,Index 38061609,8814
• Citation: 97 N.Y.S.3d 67,170 A.D.3d 599
• Parties: HSBC BANK USA, N.A., AS TRUSTEE FOR the REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET–BACKED CERTIFICATES, SERIES 2007–03, Plaintiff–Respondent, v. Michael HANCHARD, Defendant–Appellant, Joan Hamilton, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 599

97 N.Y.S.3d 67

HSBC BANK USA, N.A., AS TRUSTEE FOR the REGISTERED HOLDERS OF RENAISSANCE EQUITY LOAN ASSET–BACKED CERTIFICATES, SERIES 2007–03, Plaintiff–Respondent,

v. Michael HANCHARD, Defendant–Appellant,Joan Hamilton, et al., Defendants.

8814

M-278

Index 38061609

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

ENTERED: MARCH 26, 2019

Michael Kennedy Karlson, New York, for appellant.

Hinshaw & Culbertson LLP, New York (Brent M. Reitter of counsel), for respondent.

Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on October 26, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Michael Hanchard's motion to vacate a judgment of foreclosure entered upon his default, pursuant to CPLR 5015(a)(4), and dismiss the complaint for lack of jurisdiction, unanimously affirmed, with costs.

The court correctly found that jurisdiction had been obtained over defendant Michael Hanchard. Plaintiff established prima facie that defendant was properly served with process by showing, pursuant to CPLR 308(4), that on three separate occasions and times, the process server made efforts to serve defendant at his last known address in Florida (see Ayala v. Bassett , 57 A.D.3d 387, 870 N.Y.S.2d 261 [1st Dept. 2008] ). Defendant's conclusory denial of service was insufficient to rebut the presumption of proper service created by the process server's properly executed affidavit (see id. ; U.S. Bank N.A. v. Martinez , 139 A.D.3d 548, 549, 34 N.Y.S.3d 3 [1st Dept. 2016] ). While defendant alleged that he had never lived in Florida, the evidence showed the contrary. In 2011, defendant filed for bankruptcy, listing the Florida address as his residence. He failed to establish an alternative dwelling or usual place of abode where he could have been served (see Martinez , 139 A.D.3d at 549, 34 N.Y.S.3d 3 ).