Indymac Fed. Bank FSB v. Quattrochi

• Decision Date: 10 October 2012
• Citation: 2012 N.Y. Slip Op. 06783,99 A.D.3d 763,952 N.Y.S.2d 239
• Parties: INDYMAC FEDERAL BANK FSB, respondent, v. Ann M. QUATTROCHI, et al., defendants, Emigrant Bank, appellant.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 763

952 N.Y.S.2d 239

2012 N.Y. Slip Op. 06783

INDYMAC FEDERAL BANK FSB, respondent,

v. Ann M. QUATTROCHI, et al., defendants,Emigrant Bank, appellant.

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

Oct. 10, 2012.

Belkin Burden Wenig & Goldman, LLP, New York, N.Y. (Sherwin Belkin, Magda L. Cruz, William M. Rifkin, and Alexa Englander of counsel), for appellant.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph Battista of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In an action to foreclose a mortgage, the defendant Emigrant Bank appeals from so much of an order of the Supreme Court, Rockland County (Kelly, J.), entered April 7, 2011, as denied its motion pursuant to CPLR 5015(a)(1) and (4) to vacate a judgment of foreclosure and sale entered July 2, 2009, upon its default in answering, to set aside the foreclosure sale held pursuant thereto, and to vacate the referee's deed in foreclosure.

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

The Supreme Court properly denied the motion of the defendant Emigrant Bank (hereinafter the appellant), pursuant to CPLR 5015(a)(1) and (4), inter alia, to vacate the judgment of foreclosure and sale entered upon its default in answering the complaint. As to that branch of the appellant's motion which was to vacate its default pursuant to CPLR 5015(a)(4) for lack of jurisdiction, the affidavit of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 311(a)(1) ( see C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 785, 912 N.Y.S.2d 428;SFR Funding, Inc. v. Studio Fifty Corp., 36 A.D.3d 604, 605, 829 N.Y.S.2d 137;Galarza v. Saddle Cove Assoc., LLC., 22 A.D.3d 523, 801 N.Y.S.2d 769). Contrary to the appellant's contention, it failed to rebut this presumption of proper service. “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 process server's affidavits' ” ( Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682, quoting Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692;see Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984–985, 912 N.Y.S.2d 96;City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643;Carrenard v. Mass, 11 A.D.3d 501, 782 N.Y.S.2d 810). Here, the appellant submitted the affidavit of the person upon whom process allegedly was served, and that person (hereinafter the agent) did not deny that she was an agent authorized to receive service on behalf of the appellant, that she was at work on the date process was effectuated, or that her appearance matched the process server's description of the individual served. Rather, the agent asserted that she did not “recall” being served on that date and that she always followed the standard procedure of immediately recording the receipt of legal papers in a “Subpoena Case Record book” as soon as she received them. The agent stated that, since the “Subpoena Case Record book” does not indicate that she received the summons and complaint on the date set forth in the affidavit of service, or on any date thereafter, she did “not believe [she] could have been served as...