Opinion
1020 CA 18–00268
09-28-2018
ROBERT K. LESSER LIVING TRUST, DATED APRIL 21, 2005, Plaintiff–Respondent, v. UNITED SECULAR AMERICAN CENTER FOR THE DISABLED, INC., Defendant–Appellant, et al., Defendants.
KAZMI & REEVES LLP, NEW YORK CITY (JOHN W. REEVES OF COUNSEL), FOR DEFENDANT–APPELLANT. PHILLIPS LYTLE LLP, ROCHESTER (RICHARD J. EVANS, JR., ROCHESTER, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
KAZMI & REEVES LLP, NEW YORK CITY (JOHN W. REEVES OF COUNSEL), FOR DEFENDANT–APPELLANT.
PHILLIPS LYTLE LLP, ROCHESTER (RICHARD J. EVANS, JR., ROCHESTER, OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to foreclose a mortgage secured by property that defendant United Secular American Center for the Disabled, Inc. (United) purchased from plaintiff. After United failed to appear in the action, a default judgment was entered. By a pro se order to show cause, United's president, Sharif Rahman, moved to vacate the default judgment based upon a lack of personal jurisdiction (see CPLR 5015[a][4] ). We conclude that Supreme Court properly denied the motion without conducting a traverse hearing to determine whether United was properly served.
"Pursuant to CPLR 311(a), personal service on a corporation may be accomplished by, inter alia, delivering the summons to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service" ( Interboro Ins. Co. v. Tahir, 129 A.D.3d 1687, 1688, 12 N.Y.S.3d 688 [4th Dept. 2015] [internal quotation marks omitted] ). Here, "[t]he process server's affidavit, which stated that the corporate defendant was personally served by delivering a copy of the summons and complaint to [Rahman] and provided a description of [him], constituted prima facie evidence of proper service pursuant to CPLR 311(a)(1)" ( id. [internal quotation marks omitted]; see Cellino & Barnes, P.C. v. Martin, Lister & Alvarez, PLLC, 117 A.D.3d 1459, 1460, 985 N.Y.S.2d 776 [4th Dept. 2014], lv dismissed 24 N.Y.3d 928, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ), and United "failed to rebut the presumption of proper service by providing ‘specific facts to rebut the statements in the process server's affidavit[ ]’ " ( Wright v. Denard, 111 A.D.3d 1330, 1331, 974 N.Y.S.2d 712 [4th Dept. 2013] ; see Cellino & Barnes, P.C., 117 A.D.3d at 1460, 985 N.Y.S.2d 776 ; cf. Cach, LLC v. Ryan, 158 A.D.3d 1193, 1194–1195, 71 N.Y.S.3d 237 [4th Dept. 2018] ). We thus conclude that Rahman's conclusory denials of service were "insufficient to support [United's] defense of lack of personal jurisdiction based on improper service of process or raise issues of fact requiring a traverse hearing" ( Sharbat v. Law Offs. of Michael B. Wolk, P.C., 121 A.D.3d 426, 427, 993 N.Y.S.2d 691 [1st Dept. 2014] ; see Reem Contr. v. Altschul & Altschul, 117 A.D.3d 583, 584, 986 N.Y.S.2d 446 [1st Dept. 2014] ; Irwin Mtge. Corp. v. Devis, 72 A.D.3d 743, 743, 898 N.Y.S.2d 854 [2d Dept. 2010] ). United's other contentions with respect to the service upon Rahman are raised for the first time on appeal and thus are not properly before us (see Orellano v. Samples Tire Equip. & Supply Corp., 110 A.D.2d 757, 758, 488 N.Y.S.2d 211 [2d Dept. 1985] ; see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).
Although United further contends that service of process on the Secretary of State did not confer personal jurisdiction over United (see Business Corporation Law § 306 ; Gourvitch v. 92nd & 3rd Rest Corp., 146 A.D.3d 431, 431, 44 N.Y.S.3d 403 [1st Dept. 2017] ; see also Matter of Hamilton Equity Group, LLC v. Southern Wellcare Med., P.C., 158 A.D.3d 1214, 1215, 70 N.Y.S.3d 273 [4th Dept. 2018] ), we note that, before the motion court, United failed to address, let alone establish any defect in, plaintiff's service of process through the Secretary of State. We thus conclude that United's current challenges to such service, raised for the first time on appeal, are not properly before us (see Fwu Chyuang Chow v. Kenteh Enters. Corp., 169 A.D.2d 572, 573, 564 N.Y.S.2d 426 [1st Dept. 1991] ; see generally Ciesinski, 202 A.D.2d at 985, 609 N.Y.S.2d 745 ).