Opinion
2012-04-17
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Ruhella HOSSAIN, appellant, et al., defendants.
Campos, Lazar & Martin, PLLC, West Islip, N.Y. (Richard G. Martin and Donald L. Citak of counsel), for appellant. Locke Lord LLP, New York, N.Y. (R. James De Rose III of counsel), for respondent.
Campos, Lazar & Martin, PLLC, West Islip, N.Y. (Richard G. Martin and Donald L. Citak of counsel), for appellant. Locke Lord LLP, New York, N.Y. (R. James De Rose III of counsel), for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ.
In an action to foreclose a mortgage, the defendant Ruhella Hossain appeals from an order of the Supreme Court, Queens County (Cullen, J.), dated June 8, 2011, which denied, without a hearing, her motion pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court dated December 17, 2008, entered upon her default in appearing or answering the complaint and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of proper service.
ORDERED that the order dated June 8, 2011, is affirmed, with costs.
The motion of the defendant Ruhella Hossain (hereinafter the defendant) pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of proper service was properly denied without a hearing. The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308(4) ( see Washington Mut. Bank v. Holt, 71 A.D.3d 670, 897 N.Y.S.2d 148; Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592). In opposition, the defendant's affidavit was insufficient to rebut the presumption of proper service created by the process server's affidavit ( see Prospect Park Mgt., LLC v. Beatty, 73 A.D.3d 885, 886, 900 N.Y.S.2d 433; Beneficial Homeowner Serv. Corp. v. Girault, 60 A.D.3d 984, 875 N.Y.S.2d 815; Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592). Thus, the Supreme Court properly denied the defendant's motion ( see Household Fin. Realty Corp. of N.Y. v. Brown, 13 A.D.3d 340, 341, 785 N.Y.S.2d 742).