Opinion
2018-01116 Index 3090/10
09-22-2021
Chase Home Finance, LLC, respondent, v. Chaim Kahana, et al., appellants, et al., defendant.
Phillip J. Murphy, New City, NY, for appellants. McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta of counsel), for respondent.
Phillip J. Murphy, New City, NY, for appellants.
McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta of counsel), for respondent.
WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON LARA J. GENOVESI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Chaim Kahana and Frimet Kahana appeal from an order of the Supreme Court, Rockland County (Gerald E. Loehr, J.), entered August 9, 2017. The order, insofar as appealed from, after a hearing to determine the validity of service of process upon the defendants Chaim Kahana and Frimet Kahana, denied those defendants' cross motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this action to foreclose a mortgage, the defendants Chaim Kahana and Fermit Kahana (hereinafter together the defendants) failed to appear in the action and, when the plaintiff moved, inter alia, for an order of reference, they cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them, contending that they were never served with process. At a subsequent hearing to determine the validity of service of process, the process server did not testify, but his affidavits of service upon the defendants were admitted into evidence pursuant to CPLR 4531, over objection. Following testimony by both of the defendants, the Supreme Court found that they were properly served with process. In an order entered August 9, 2017, the court among other things, denied the defendants' cross motion to dismiss the complaint insofar as asserted against them. The defendants appeal.
"The plaintiff had the burden of proving that jurisdiction was obtained over the defendants by proper service of process (see Spangenberg v Chaloupka, 229 A.D.2d 482; Lexington Ins. Co. v Schuyler Bumpers, 125 A.D.2d 554). A process server's affidavit of service constitutes prima facie proof of service (see Kaywood v Cigpak, Inc., 258 A.D.2d 623; Manhattan Sav. Bank v Kohen, 231 A.D.2d 499)" (Rox Riv 83 Partners v Ettinger, 276 A.D.2d 782, 783).
Here, a hearing was warranted based on the defendants' affidavits, which contained detailed and specific contradictions of the allegations in the affidavits of service (see Banker's Trust Co. of Cal. v Tsoukas, 303 A.D.2d 343, 344). Contrary to the defendants' contention, the process server's affidavits of service were properly admitted into evidence at the hearing pursuant to CPLR 4531, since the hearing evidence supported the Supreme Court's conclusion that the process server could not be compelled with due diligence to attend the hearing (see Tribeca Lending Corp. v Moogan, 190 A.D.3d 779, 781; Deutsche Bank Natl. Trust Co. v Vilfranc, 157 A.D.3d 766, 767).
We discern no basis to disturb the determination of the Supreme Court, which saw and heard the witnesses at the hearing, that the defendants were properly served with the summons and complaint (see Matter of Reisz v Reisz, 267 A.D.2d 462).
MASTRO, J.P., DUFFY, BRATHWAITE NELSON and GENOVESI, JJ., concur.