Opinion
2015–12172 2015–12176 2015–12179 Index No. 5431/10
04-11-2018
BAC HOME LOANS SERVICING, LP, etc., appellant, v. Andres H. CARRASCO, respondent, et al., defendants.
Sandelands Eyet, LLP, New York, N.Y. (William C. Sandelands, Laurence P. Chirch, and Kieran M. Dowling of counsel), for appellant. Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for respondent.
Sandelands Eyet, LLP, New York, N.Y. (William C. Sandelands, Laurence P. Chirch, and Kieran M. Dowling of counsel), for appellant.
Peter M. Zirbes, Esq., P.C., Forest Hills, NY, for respondent.
WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the plaintiff appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, (2) from an order of the same court entered February 10, 2015, which, after a hearing, in effect, granted that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and (3), as limited by its brief, from so much of an order of the same court entered October 22, 2015, as denied that branch of its motion which was for leave to reargue.
ORDERED that on the Court's own motion, the notice of appeal from so much of the order entered October 14, 2014, as directed a hearing on that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal from that portion of the order is granted (see CPLR 5701[c] ); and it is further,
ORDERED that the order entered October 14, 2014, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Andres H. Carrasco which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is denied, and the order entered February 10, 2015, is vacated; and it is further,
ORDERED that the appeal from the order entered February 10, 2015, is dismissed as academic in light of our determination on the appeal from the order entered October 14, 2014; and it is further, ORDERED that the appeal from so much of the order entered October 22, 2015, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v. Svoboda , 120 A.D.3d 772, 772, 992 N.Y.S.2d 279 ; Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC , 112 A.D.3d 813, 814, 977 N.Y.S.2d 351 ). "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' " ( Scarano v. Scarano , 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 [citation omitted], quoting Simonds v. Grobman , 277 A.D.2d 369, 370, 716 N.Y.S.2d 692 ; see American Home Mtge. Servicing, Inc. v. Gbede , 127 A.D.3d 1004, 1005 ; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman , 116 A.D.3d 824, 984 N.Y.S.2d 392 ). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server's affidavit (see U.S. Bank N.A. v. Telford , 153 A.D.3d 881, 882, 60 N.Y.S.3d 370 ; Bank of N.Y. v. Samuels , 107 A.D.3d 653, 654, 968 N.Y.S.2d 93 ; Christiana Bank & Trust Co. v. Eichler , 94 A.D.3d 1170, 1171, 942 N.Y.S.2d 241 ). Carrasco's conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v. Peralta , 142 A.D.3d 988, 988–989, 37 N.Y.S.3d 308 ; Bank of N.Y. v. Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105 ). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v. Decesare , 154 A.D.3d 717, 62 N.Y.S.3d 446 ; Washington Mut. Bank v. Huggins , 140 A.D.3d 858, 859, 35 N.Y.S.3d 127 ).
MASTRO, J.P., ROMAN, SGROI and COHEN, JJ., concur.