Opinion
7696 Index 35786/15
11-27-2018
JP MORGAN CHASE BANK, etc., Plaintiff–Respondent, v. Cauline DENNIS, etc., Defendant–Appellant, Simone Dennis, etc., et al., Defendants.
Cauline Dennis, appellant pro se. Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Cauline Dennis, appellant pro se.
Shapiro, DiCaro & Barak, LLC, Rochester (Austin T. Shufelt of counsel), for respondent.
Friedman, J.P., Mazzarelli, Kern, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered October 18, 2017, which denied defendant Cauline Dennis's motion to vacate the June 12, 2017 judgment of foreclosure and sale, unanimously affirmed, without costs.
The affidavit of service filed by plaintiff was prima facie evidence that defendant was properly served with the summons and complaint pursuant to CPLR 308(2) (see NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [1st Dept. 2004] ). On August 20, 2015, process was delivered to defendant at the mortgaged location. The deponent described the individual served as a brown skinned female with black hair, approximately 40 years old, five feet five inches in height, and 220 pounds. To rebut this prima facie showing, defendant was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server's affidavit (see id. ; Avis Rent A Car Sys., LLC v. Scaramellino, 161 A.D.3d 572, 78 N.Y.S.3d 11 [1st Dept. 2018] ). Defendant's assertion that she was never served with the summons and complaint, and that the description of the person served "does not match the description of defendant" is insufficient to rebut the presumption ( Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 723, 32 N.Y.S.3d 213 [2d Dept. 2016] ).
Since defendant has not established a reasonable excuse for her default, she has waived her standing defense (see Bank of Am., N.A. v. Brannon, 156 A.D.3d 1, 7, 63 N.Y.S.3d 352 [1st Dept. 2017] [citations omitted] ), as well as any defense resulting from plaintiff's alleged failure to comply with RPAPL 1304 (see Deutsche Bank Natl. Trust Co. v. Lopez, 148 A.D.3d 475, 475–476, 49 N.Y.S.3d 123 [1st Dept. 2017] [citation omitted] ).
Defendant has provided no "newly discovered" evidence that was not previously discoverable or material to her appeal.