Opinion
2001-00029
Submitted June 12, 2002
July 30, 2002.
In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Nassau County (Skelos, J.), entered November 21, 2000, which denied his motion to vacate a judgment of divorce entered October 29, 1999, upon his failure to appear or answer.
Ronald DeFeo, Stormville, N.Y., appellant pro se.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is affirmed, without costs or disbursements.
The Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(4) to vacate the judgment of divorce entered upon his failure to appear or answer the verified complaint. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308(1) (see NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279; Wieck v. Halpern, 255 A.D.2d 438; Green Point Sav. Bank v. Clark, 253 A.D.2d 514). The defendant failed to submit a sworn denial of service or swear to specific facts to rebut the statements in the process server's affidavit (see Silverman v. Deutsch, 283 A.D.2d 478; Walkes v. Benoit, 257 A.D.2d 508; European Am. Bank v. Abramoff, 201 A.D.2d 611). Thus, the Supreme Court properly denied the defendant's motion to vacate the default.
We have not considered correspondence from the Department of Correctional Services submitted on appeal which is dehors the record before the Supreme Court (see Shpak v. New York City Trans. Auth., 292 A.D.2d 590; Penta v. Related Cos., 286 A.D.2d 674).
SANTUCCI, J.P., SMITH, KRAUSMAN, H. MILLER and ADAMS, JJ., concur.