Opinion
14900 Index No. 654002/19 Case No. 2021–02254
12-21-2021
LANTERN ENDOWMENT PARTNERS, LP, Plaintiff–Respondent, v. BLUEFIN SERVICING LTD. et al., Defendants, Ian S. Peck, Defendant–Appellant.
Press Koral LLP, New York (Matthew J. Press of counsel), for appellant. Berlandi Nussbaum & Reitzas LLP, New York (John P. O'Brien of counsel), for respondent.
Press Koral LLP, New York (Matthew J. Press of counsel), for appellant.
Berlandi Nussbaum & Reitzas LLP, New York (John P. O'Brien of counsel), for respondent.
Renwick, J.P., Oing, Singh, Scarpulla, Pitt, JJ.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered June 15, 2021, which, to the extent appealed from, denied defendant Ian Peck's motion to vacate a default judgment as against him, unanimously affirmed, with costs.
Plaintiff's assertion that defendant waived personal jurisdiction was not preserved for appellate review (see Mendelsohn v. City of N.Y. [19th Precinct], 89 A.D.3d 569, 569–570, 934 N.Y.S.2d 3 [1st Dept. 2011], lv denied 19 N.Y.3d 804, 2012 WL 1988415 [2012] ).
In any event, the motion court properly found that jurisdiction had been obtained over defendant and thus that he failed to establish his entitlement to vacatur pursuant to CPLR 5015(a)(4). The process server's affidavit reflects that service was effectuated by personal service. Defendant's conclusory denial of service is insufficient to rebut the presumption of service created by the process server's affidavit ( U.S. Bank N.A. v. Martinez, 139 A.D.3d 548, 549, 34 N.Y.S.3d 3 [1st Dept. 2016] ; see Reem Contr. v. Altschul & Altschul, 117 A.D.3d 583, 584, 986 N.Y.S.2d 446 [1st Dept. 2014] ). Defendant's claim that he is taller and two years older than the person described in the affidavit of service is insufficient to rebut the presumption of service, as he does not dispute that the weight, hair color, and skin color and other descriptions in the affidavit, match his description (see Ocwen Loan Servicing, LLC v. Ali, 180 A.D.3d 591, 119 N.Y.S.3d 474 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1046, 140 N.Y.S.3d 477, 164 N.E.3d 283 [2021] ).
We have considered defendant's remaining arguments and find them unavailing.