Opinion
2018–03066 Index No. 25426/11
11-28-2018
REAL ESTATE MORTGAGE NETWORK, INC., Respondent, v. Richard MARTINEZ, et al., Defendants, Brenda Perez, Appellant.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern and Edward Rugino of counsel), for respondent.
Jeffrey Herzberg, P.C., Hauppauge, NY, for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern and Edward Rugino of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SANDRA L. SGROI, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
The plaintiff, Real Estate Mortgage Network, Inc., commenced this mortgage foreclosure action against the defendant Brenda Perez, among others, in August 2011. On or about May 11, 2017, the Supreme Court signed an order of reference without opposition. The plaintiff subsequently moved, inter alia, for a judgment of foreclosure and sale, which was entered, again without opposition, on November 29, 2017.
Perez moved pursuant to CPLR 5015(a)(4) and 308, in effect, to vacate the judgment of foreclosure and sale entered upon Perez's failure to appear or answer the complaint, and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. Perez argued that the Supreme Court lacked personal jurisdiction over her because the plaintiff failed to properly serve her with the summons and complaint. In an order dated January 18, 2018, the court denied the motion without a hearing. Perez appeals.
We agree with the Supreme Court's denial of Perez's motion. The plaintiff submitted the process server's affidavit of service, which constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see JPMorgan Trust Bank, N.A. v. Hoffmann , 154 A.D.3d 699, 699, 60 N.Y.S.3d 842 ; Matter of Goldberger v. Gansburg , 85 A.D.3d 914, 926 N.Y.S.2d 116 ; Wells Fargo Bank, N.A. v. McGloster , 48 A.D.3d 457, 849 N.Y.S.2d 784 ; 96 Pierrepont v. Mauro , 304 A.D.2d 631, 757 N.Y.S.2d 468 ). By failing to proffer her own sworn statement as to her actual dwelling place or swear to specific facts rebutting the statements in the process server's affidavit, Perez failed to refute the prima facie evidence of proper service and raise a factual issue necessitating a hearing to determine the validity of service of process (see NYCTL 2009–A Trust v. Tsafatinos , 101 A.D.3d 1092, 956 N.Y.S.2d 571 ; Matter of Goldberger v. Gansburg , 85 A.D.3d at 915, 926 N.Y.S.2d 116 ; Countrywide Home Loans Servicing, LP v. Albert , 78 A.D.3d 983, 984, 912 N.Y.S.2d 96 ; Chemical Bank v. Darnley , 300 A.D.2d 613, 613–614, 752 N.Y.S.2d 397 ).
AUSTIN, J.P., ROMAN, SGROI and LASALLE, JJ., concur.