OCI Mortg. Corp. v. Omar
| Decision Date | 15 October 1996 |
| Citation | 232 A.D.2d 462,648 N.Y.S.2d 175 |
| Parties | OCI MORTGAGE CORP., Respondent, v. Saleha OMAR, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Howard R. Birnbach, Great Neck, for appellant.
Cullen and Dykman, Garden City (Peter T. Bauer, of counsel), for respondent.
Before BRACKEN, J.P., and COPERTINO, JOY, FLORIO, and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In a mortgage foreclosure action, the defendant Saleha Omar appeals from an order of the Supreme Court, Queens County (Price, J.), dated December 21, 1995, which denied her motion to vacate a judgment of foreclosure and sale dated July 28, 1995, entered upon her default in answering the complaint.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Queens County, for a hearing on the issue of whether proper service of the summons and complaint was made upon the appellant in accordance with the requirements of CPLR 308(2) and a de novo determination of the appellant's motion.
The Supreme Court erred in failing to hold a hearing on the issue of the propriety of personal service upon the appellant since the appellant has raised an issue of fact with respect to the service of the summons and verified complaint. The burden of proving jurisdiction is upon the party asserting it and when challenged that party must sustain that burden by a preponderance of the credible evidence (see, Vito M. Fosella Bldrs. & Gen. Contrs. v. Silver, 208 A.D.2d 525, 526, 617 N.Y.S.2d 59; Dime Sav. Bank of N.Y. v. Steinman, 206 A.D.2d 404, 613 N.Y.S.2d 945). An affidavit of service is not conclusive once there is a sworn denial of receipt (see, Empire Nat. Bank v. Judal Constr. of N.Y., 61 A.D.2d 789, 401 N.Y.S.2d 852). The appellant denies that the person upon whom process was served pursuant to CPLR 308(2) was her cousin. Furthermore, although the appellant is a woman, the process server's affidavit indicates that the person he served informed him that the appellant was male. Thus, factual issues have been raised which require a hearing to be held (see, Green Point Sav. Bank v. Taylor, 92 A.D.2d 910, 460 N.Y.S.2d 121).
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