Opinion
2014-09299, Index No. 27645/07
02-04-2015
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Ronald B. LOSNER, appellant, et al., defendants.
Biolsi Law Group P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant. Knuckles, Komosinski & Elliott LLP, Elmsford, N.Y. (Christopher Messina of counsel), for respondent.
Biolsi Law Group P.C., New York, N.Y. (Steven Alexander Biolsi of counsel), for appellant.
Knuckles, Komosinski & Elliott LLP, Elmsford, N.Y. (Christopher Messina of counsel), for respondent.
Opinion In an action to foreclose a mortgage, the defendant Ronald B. Losner appeals from an order of the Supreme Court, Queens County (Butler, J.), entered August 26, 2014, which denied his motion to vacate a judgment of foreclosure and sale of the same court entered July 11, 2008, which had been entered upon his failure to answer the complaint.
ORDERED that the order is affirmed, with costs.
The defendant Ronald B. Losner (hereinafter the defendant) sought to vacate a judgment of foreclosure and sale, which had been entered upon his failure to answer the complaint, on the ground of lack of personal jurisdiction. Pursuant to CPLR 5015(a)(4), a judgment entered upon a movant's default must be vacated once the movant demonstrates lack of jurisdiction (see Hossain v. Fab Cab Corp., 57 A.D.3d 484, 868 N.Y.S.2d 746 ; Matter of Qadeera Tonezia D., 55 A.D.3d 606, 866 N.Y.S.2d 223 ). Although a process server's affidavit of service ordinarily constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d 1074, 899 N.Y.S.2d 269 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343–344, 756 N.Y.S.2d 92 ), a defendant may rebut the prima facie showing with a sworn denial of receipt of process containing specific facts to refute the process server's affidavit (see Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92 ; see also Deutsche Bank Natl. Trust Co. v. Pestano, 71 A.D.3d 1074, 899 N.Y.S.2d 269 ; Wern v. D'Alessandro, 219 A.D.2d 646, 631 N.Y.S.2d 425 ; Frankel v. Schilling, 149 A.D.2d 657, 540 N.Y.S.2d 469 ). Here, the Supreme Court correctly determined that the defendant's affidavit was insufficient to rebut the process server's affidavit, and therefore, properly denied the defendant's motion to vacate the judgment of foreclosure and sale.
RIVERA, J.P., HALL, ROMAN, COHEN and BARROS, JJ., concur.