Opinion
09-14-2016
U.S. BANK, N.A., etc., respondent, v. Elena PERALTA, appellant, et al., defendants.
Abraham Hoschander, Brooklyn, NY, for appellant. Hogan Lovells U.S. LLP, New York, NY (David Dunn, Stacey Lara, and Leah N. Jacob of counsel), for respondent.
Abraham Hoschander, Brooklyn, NY, for appellant.
Hogan Lovells U.S. LLP, New York, NY (David Dunn, Stacey Lara, and Leah N. Jacob of counsel), for respondent.
RUTH C. BALKIN, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
Opinion In an action to foreclose a mortgage, the defendant Elena Peralta appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Dear, J.), dated November 3, 2014, which granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.
In this mortgage foreclosure action, the plaintiff moved to confirm a referee's report and for a judgment of foreclosure and sale. The defendant Elena Peralta opposed the motion, arguing, among other things, that she was never properly served with the summons and complaint. The Supreme Court concluded that service was proper and, in an order and judgment of foreclosure and sale, granted the plaintiff's motion and directed the sale of the subject property. Peralta appeals, arguing that she was entitled to a hearing to determine the validity of service of process.
The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over a defendant was obtained (see Wern v. D'Alessandro, 219 A.D.2d 646, 647, 631 N.Y.S.2d 425 ; Frankel v. Schilling, 149 A.D.2d 657, 659, 540 N.Y.S.2d 469 ; Powell v. Powell, 114 A.D.2d 443, 444, 494 N.Y.S.2d 359 ). Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served (see Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d 824, 825, 921 N.Y.S.2d 127 ; Verille v. Kopic, 304 A.D.2d 823, 757 N.Y.S.2d 875 ; Frankel v. Schilling, 149 A.D.2d at 659, 540 N.Y.S.2d 469 ; Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479 ). However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing (see Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 ; Sileo v. Victor, 104 A.D.3d 669, 670, 960 N.Y.S.2d 466 ; Dime Sav. Bank of N.Y. v. Steinman, 206 A.D.2d 404, 405, 613 N.Y.S.2d 945 ; Frankel v. Schilling, 149 A.D.2d at 659, 540 N.Y.S.2d 469 ; Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d at 139, 502 N.Y.S.2d 479 ). A hearing is not required where the defendant fails to “swear to specific facts to rebut the statements in the process server's affidavits” (Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692 ; see U.S. Bank N.A. v. Losner, 125 A.D.3d 640, 999 N.Y.S.2d 749 ; Indymac Fed. Bank FSB v. Quattrochi, 99 A.D.3d 763, 764, 952 N.Y.S.2d 239 ; Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96 ; Scarano v. Scarano, 63 A.D.3d 716, 880 N.Y.S.2d 682 ). Contrary to Peralta's contention, the Supreme Court correctly determined that her affidavit was insufficient to rebut the process server's affidavit. Accordingly, the Supreme Court correctly granted the plaintiff's motion without first holding a hearing.