Opinion
13804 Index No. 380266/11 Case No. 2019-03527
05-11-2021
DEUTSCHE BANK NATIONAL TRUST COMPANY AS Indenture TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2005–2, Plaintiff–Respondent, v. Wendell CHUNG, Defendant–Appellant, Internal Revenue Service–United States of America, et al., Defendants.
Hass & Gottlieb, Scarsdale (Lawrence M. Gottlieb of counsel), for appellant. Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), for respondent.
Hass & Gottlieb, Scarsdale (Lawrence M. Gottlieb of counsel), for appellant.
Shapiro, DiCaro & Barak, LLC, Rochester (Ellis M. Oster of counsel), for respondent.
Gische, J.P., Kapnick, Oing, Singh, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about May 14, 2019, which granted plaintiff's motion to confirm the report of the Special Referee rendered after a traverse hearing, and denied defendant Wendell Chung's cross motion to reject the report and his motion to dismiss the complaint and to vacate the judgment of foreclosure based on lack of personal jurisdiction, unanimously affirmed, without costs.
The court correctly confirmed the report of the Special Referee recommending that it find that defendant was properly served, which was supported by the record of the traverse hearing (see Plaza Funding Corp. v. J.C. Dev. Corp., 155 A.D.2d 298, 547 N.Y.S.2d 62 [1st Dept. 1989] ; cf. Those Certain Underwriters at Lloyds, London v. Occidental Gems, Inc., 11 N.Y.3d 843, 845, 873 N.Y.S.2d 239, 901 N.E.2d 732 [2008] ). Plaintiff presented the process server's testimony and affidavit of service, which is prima facie evidence of proper service (see Matter of Nazarian v. Monaco Imports, 255 A.D.2d 265, 266, 680 N.Y.S.2d 252 [1st Dept. 1998] ). Although the process server provided an inaccurate estimate of defendant's height and weight, he correctly stated defendant's skin color, hair color, and age, and accurately described defendant's house where service was effectuated. The Referee found defendant's testimony, supported by his electronic personal calendar, which he admitted could be altered at any time, to be unpersuasive. Accordingly, the court properly deferred to the Referee's findings (see European Am. Bank & Trust Co. v. H. Frenkel, Ltd., 163 A.D.2d 154, 155, 557 N.Y.S.2d 371 [1st Dept. 1990] ).