Mortg. Elec. Registration Sys., Inc. v. Losco

REINALDO E. RIVERA

Maffei Maffei & Keating, Yonkers, N.Y. (Matthew J. Keating of counsel), for appellant. Hogan Lovells U.S., LLP, New York, N.Y. (Chava Brandriss, David Dunn, and Heather R. Gushue of counsel), for respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, JEFFREY A. COHEN, and BETSY BARROS, JJ.

In an action to cancel and vacate a satisfaction of mortgage, the defendant Michael Losco appeals, as limited by his brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (Walker, J.), dated June 24, 2013, which, inter alia, granted that branch of the plaintiff's motion which was, in effect, for leave to enter a default judgment against him upon his failure to timely appear or answer the complaint, and denied his cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

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

“A process server's affidavit of service constitutes prima facie evidence of proper service” (Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682; see NYCTL 2009–A Trust v. Tsafatinos, 101 A.D.3d 1092, 1093, 956 N.Y.S.2d 571; Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96). “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, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” (Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d at 984–985, 912 N.Y.S.2d 96 [internal quotation marks and citation omitted]; see Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 A.D.3d 824, 825, 984 N.Y.S.2d 392; Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692). Here, the affidavit of service of the plaintiff's process server constituted prima facie evidence of proper service on the appellant pursuant to CPLR 308(1) ( see Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC, 112 A.D.3d 813, 814, 977 N.Y.S.2d 351). The appellant's affidavit was insufficient to rebut the presumption of proper service created by the process server's affidavit ( see Carver Fed. Sav. Bank v. Supplice, 109 A.D.3d 572, 572–573, 970 N.Y.S.2d 706; Deutsche Bank Natl. Trust Co. v. Jagroop, 104 A.D.3d 723, 724, 960 N.Y.S.2d 488). Moreover, the additional affidavit submitted by the appellant in support of his cross motion to dismiss the complaint insofar as asserted against him was improperly submitted for the first time in reply ( see Board of Mgrs. of Foundry at Washington Park Condominium v. Foundry Dev. Co., Inc., 111 A.D.3d 776, 777, 975 N.Y.S.2d 456). Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was, in effect, for leave to enter a default judgment against the appellant upon his failure to timely appear or answer the complaint, and denied the appellant's cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.