Bank of N.Y. Mellon Tr. Co. v. Kahn

6 Citing cases

  1. CitiMortg., Inc. v. Barton

    212 A.D.3d 706 (N.Y. App. Div. 2023)   Cited 4 times

    Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant and for order of reference. The Supreme Court also properly denied that branch of the defendant's cross motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, since the defendant failed to rebut the presumption of proper service (seeBank of N.Y. Mellon Trust Co., N.A. v. Kahn, 192 A.D.3d 1070, 1071, 141 N.Y.S.3d 720 ). Finally, the Supreme Court properly denied the alternative branch of the defendant's cross motion which was, in effect, pursuant to CPLR 3012(d) for leave to interpose a late answer.

  2. Bank of N.Y. Mellon v. Blackwood

    210 A.D.3d 1040 (N.Y. App. Div. 2022)   Cited 1 times

    "A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing" ( Green Tree Servicing, LLC v. Frantzeskakis, 200 A.D.3d 654, 654, 154 N.Y.S.3d 864 [internal quotation marks omitted]). "Further, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect" ( id. at 654–655, 154 N.Y.S.3d 864 [internal quotation marks omitted]). Here, the affidavits of service relied upon by the plaintiff constituted prima facie proof of proper service upon the defendants (seeBank of New York Mellon Trust Co., N.A. v. Kahn, 192 A.D.3d 1070, 1072, 141 N.Y.S.3d 720 ). The plaintiff correctly contends that the defendants did not rebut the "presumption of proper service" raised by the affidavits of service ( Deutsche Bank Natl. Trust Co. v. Patrick, 173 A.D.3d at 975, 105 N.Y.S.3d 85 [internal quotation marks omitted]).

  3. U.S. Bank v. Hawthorne

    2022 N.Y. Slip Op. 4575 (N.Y. App. Div. 2022)

    The person served was identified as the defendant's "Daughter-in-law/Co-resident," and a detailed physical description was provided. The process server's affidavit established, prima facie, that the defendant was properly served pursuant to CPLR 308(2) (see Bank of N.Y. Mellon Trust Co., N.A. v Kahn, 192 A.D.3d 1070, 1071). The defendant's vague statement, in his affidavit in support of his motion to dismiss, that he "knows of no such person and lived alone in August 2019," was insufficiently detailed to rebut the presumption of proper service and to warrant a hearing (see Sperry Assoc. Fed. Credit Union v Lee, 193 A.D.3d 1012, 1013).

  4. Unifund CCR, LLC v. Valvis

    2022 N.Y. Slip Op. 4577 (N.Y. App. Div. 2022)   Cited 3 times

    In response, the defendant failed to rebut the presumption of proper service arising from the process server's affidavit of service. The defendant's assertion that he "lived alone" did not rebut the process server's sworn allegation that a person matching the description of "JANE SMITH" was present at the time of service and accepted service on behalf of the defendant (see Rattner v Fessler, 202 A.D.3d 1011; Bank of N.Y. Mellon Trust Co., N.A. v Kahn, 192 A.D.3d 1070; Washington Mut. Bank v Huggins, 140 A.D.3d 858). Moreover, the defendant's assertion that the summons and complaint may have been delivered to someone in one of the other two residences in his building was speculative.

  5. Rattner v. Fessler

    202 A.D.3d 1011 (N.Y. App. Div. 2022)   Cited 22 times

    Here, the affidavits submitted by both Gillian and Shaina in support of the defendants’ cross motion and in opposition to the plaintiff's prior motion were insufficient to rebut the plaintiff's prima facie showing of proper service on those defendants. Gillian admitted in her affidavit that she resided at the premises where service was effectuated, and offered nothing more than a conclusory denial of having received service (seeU.S. Bank N.A. v. Nakash, 195 A.D.3d 651, 652, 151 N.Y.S.3d 50 ; Deutsche Bank Natl. Trust Co. v. Burnett, 194 A.D.3d 908, 144 N.Y.S.3d 363 ; Bank of N.Y. Mellon Trust Co., N.A. v. Kahn, 192 A.D.3d 1070, 1071, 141 N.Y.S.3d 720 ; Countrywide Home Loans, Inc. v. Smith, 171 A.D.3d 858, 859, 98 N.Y.S.3d 150 ). Shaina similarly denied receiving service, and asserted that she did not know "any person by the name of ‘Seth Fessler’ " and that she was not married on the date when service was allegedly made.

  6. Rattner v. Fessler

    2022 N.Y. Slip Op. 1058 (N.Y. Sup. Ct. 2022)

    Here, the affidavits submitted by both Gillian and Shaina in support of the defendants' cross motion and in opposition to the plaintiff's prior motion were insufficient to rebut the plaintiff's prima facie showing of proper service on those defendants. Gillian admitted in her affidavit that she resided at the premises where service was effectuated, and offered nothing more than a conclusory denial of having received service (see U.S. Bank N.A. v Nakash, 195 A.D.3d 651, 652; Deutsche Bank Natl. Trust Co. v Burnett, 194 A.D.3d 908; Bank of N.Y. Mellon Trust Co., N.A. v Kahn, 192 A.D.3d 1070, 1071; Countrywide Home Loans, Inc. v Smith, 171 A.D.3d 858, 859). Shaina similarly denied receiving service, and asserted that she did not know "any person by the name of 'Seth Fessler'" and that she was not married on the date when service was allegedly made.