Opinion
February 29, 1996
Appeal from the Supreme Court, Albany County (Hughes, J.).
Plaintiff commenced this action to recover the balance due on a guaranteed student loan. Defendant's answer, verified by his attorney, asserted as an affirmative defense that defendant "ha[d] not been served with the summons and complaint". Defendant then moved for summary judgment on that affirmative defense, the sole supporting evidence being an affidavit of his father, Freder De John, Sr. Supreme Court denied the motion and defendant appeals.
We affirm. We agree with Supreme Court that De John's affidavit, merely stating that the summons and complaint in this action were served during June 1992 and that defendant moved from De John's home during July 1975, "has never returned" and did not reside with De John at the time of service of the summons and complaint, was insufficient to establish prima facie plaintiff's failure to obtain personal jurisdiction over defendant ( see, CPLR 308). Accordingly, defendant's motion was properly denied ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order is affirmed, without costs.