Opinion
2017–09868 Index No. 1270/10
06-03-2020
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Stuart BIENENSTOCK, etc., et al., Appellants, et al., Defendants.
Law Offices of Sanford F. Young, P.C., New York, NY, for appellants. McCabe, Weisberg & Conway, LLC (Blank Rome LLP, New York, N.Y. [Timothy W. Salter and Diana M. Eng ], of counsel), for respondent.
Law Offices of Sanford F. Young, P.C., New York, NY, for appellants.
McCabe, Weisberg & Conway, LLC (Blank Rome LLP, New York, N.Y. [Timothy W. Salter and Diana M. Eng ], of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
ORDERED that the order is affirmed, with costs.
Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v. Murphy , 127 A.D.3d 1167, 1174, 10 N.Y.S.3d 95 ; Emigrant Mtge. Co., Inc. v. Westervelt , 105 A.D.3d 896, 896–897, 964 N.Y.S.2d 543 ). The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (see Emigrant Mtge. Co., Inc. v. Westervelt , 105 A.D.3d at 897, 964 N.Y.S.2d 543 ; Krisilas v. Mount Sinai Hosp., 63 A.D.3d 887, 889, 882 N.Y.S.2d 186 ). "[A] process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v. Chaplin , 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ; see U.S. Natl. Bank Assn. v. Melton , 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 ). A bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where "the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit" ( U.S. Natl. Bank Assn. v. Melton , 90 A.D.3d at 743, 934 N.Y.S.2d 352 ; see U.S. Bank, N.A. v. Arias , 85 A.D.3d 1014, 1015, 927 N.Y.S.2d 362 ).
Here, the affidavits of service of the plaintiff's process server constituted prima facie evidence of proper service on the defendants Stuart Bienenstock and Erica Bienenstock (hereinafter together the defendants) (see Real Estate Mtge. Network, Inc. v. Martinez , 166 A.D.3d 1028, 86 N.Y.S.3d 749 ), and the claimed discrepancies between the appearance of Erica Bienenstock and the description in the process server's affidavits were either too minor or insufficiently substantiated to warrant a hearing (see Wells Fargo Bank, NA v. Johnston , 175 A.D.3d 744, 105 N.Y.S.3d 307 ). Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them, inter alia, for lack of personal jurisdiction, or, in the alternative, to compel the plaintiff to accept a late answer.
In view of our determination, we need not address the defendants' remaining contentions.
DILLON, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.