Wachovia Bank v. Carcano

• Decision Date: 01 May 2013
• Citation: 106 A.D.3d 726,2013 N.Y. Slip Op. 03083,964 N.Y.S.2d 246
• Parties: WACHOVIA BANK, NATIONAL ASSOCIATION, respondent, v. Felix M. CARCANO, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 726
964 N.Y.S.2d 246
2013 N.Y. Slip Op. 03083

WACHOVIA BANK, NATIONAL ASSOCIATION, respondent,
v.
Felix M. CARCANO, etc., et al., appellants.

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

May 1, 2013.

Clair & Gjerstsen, Scarsdale, N.Y. (Nicole M. Black of counsel), for appellants.

[964 N.Y.S.2d 247]

PETER B. SKELOS, J.P., RUTH C. BALKIN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for breach of a promissory note, the defendants appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), entered November 21, 2011, which denied their motion to vacate a judgment of the same court entered February 26, 2009, upon their failure to appear or answer the complaint, and to dismiss the complaint on the ground of lack of personal jurisdiction.

ORDERED that the order is affirmed, without costs or disbursements.

The defendants moved to vacate a judgment entered in favor of the plaintiff and against them upon their failure to appear or answer the complaint, and to dismiss the complaint on the ground of lack of personal jurisdiction. The Supreme Court denied the motion.

Ordinarily, a process server's sworn affidavit of service is prima facie evidence of proper service pursuant to CPLR 308(2) ( see Roberts v. Anka, 45 A.D.3d 752, 754, 846 N.Y.S.2d 280;Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343–344, 756 N.Y.S.2d 92). However, “[a] defendant can rebut a process server's affidavit by a detailed and specific contradiction of the allegations in the process server's affidavit” ( Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d at 344, 756 N.Y.S.2d 92;see Mortgage Access Corp. v. Webb, 11 A.D.3d 592, 592, 784 N.Y.S.2d 116).

Here, the affidavits of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(2) ( see Bank of N.Y. Mellon v. Scura, 102 A.D.3d 714, 961 N.Y.S.2d 185). Contrary to the defendants' contention, they failed to rebut this presumption of proper service since they did not, in their affidavits submitted in support of their motion, swear to “specific facts to rebut the statements” in the process server's affidavit ( Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682, [internal quotation marks omitted]; see Bank of N.Y. Mellon v. Scura, 102 A.D.3d 714, 961 N.Y.S.2d 185;see also Roberts v. Anka, 45 A.D.3d at 754, 846 N.Y.S.2d 280). Accordingly, the Supreme Court properly denied the defendants' motion to vacate the...