Opinion
15326 Index No. 655236/19 Case No. 2020–04287
02-17-2022
PERLBINDER HOLDINGS LLC, Plaintiff–Respondent, v. Himansu H. PATEL et al., Defendants–Appellants.
Michael R. Curran, Flushing, for appellants. Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for respondent.
Michael R. Curran, Flushing, for appellants.
Kaufman Friedman Plotnicki & Grun, LLP, New York (Howard Grun of counsel), for respondent.
Manzanet–Daniels, J.P., Gische, Mazzarelli, Friedman, Mendez, JJ.
Judgment, Supreme Court, New York County (Tanya R. Kennedy, J.), entered August 12, 2020, in plaintiff's favor, and appeal therefrom bringing up for review an order, same court and Justice, entered July 7, 2020, which granted plaintiff's motion for summary judgment in lieu of complaint and denied defendants' cross motion to dismiss, consolidate, or convert the action, unanimously affirmed, with costs.
The affidavits of service constituted prima facie evidence of proper service, and defendants' submissions in opposition were insufficient to rebut the presumption of proper service created thereby (see generally Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 119 N.Y.S.3d 474 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1046, 140 N.Y.S.3d 477, 164 N.E.3d 283 [2021] ). Because defendant Akash H. Patel (s/h/a Akash H. Patel) failed to notify the Department of Motor Vehicles of his change of address, as required by Vehicle and Traffic Law § 505(5), he is estopped from challenging service at his former address (see Stillman v. City of New York, 39 A.D.3d 301, 303, 834 N.Y.S.2d 115 [1st Dept. 2007] ; Kandov v. Gondal, 11 A.D.3d 516, 783 N.Y.S.2d 57 [2d Dept. 2004] ). Although defendants Himansu H. Patel and Harshad S. Patel averred that the person who purportedly received service on their behalf, "Hakash Patel, Brother," did not exist, they did not address the likelihood that the person who received service was Akash, who matched the description given by the process server. While the out-of-state affidavits lack the required certificates of conformity, this technical defect, which could easily have been corrected, should not be considered because it was not timely raised (see CPLR 2309[c] ; Midfirst Bank v. Agho, 121 A.D.3d 343, 348–352, 991 N.Y.S.2d 623 [2d Dept. 2014] ).
This case, which is based on an instrument for the payment of money only, i.e., a promissory note, was properly brought pursuant to CPLR 3213. Defendants' request for consolidation with a related action ( Perlbinder Holdings LLC v. Patel, index No. 655248/19) is moot in view of the disposition of both actions.