Opinion
No. 2022-08596 Index No. 506381/13
05-22-2024
US Bank, National Association, etc., respondent, v. Sandra Knight, et al., appellants, et al., defendants.
Leila Rose-Gordon, Elmont, NY (Harold Pokel of counsel), for appellants. Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (John E. Brigandi and Ali Degan of counsel), for respondent.
Leila Rose-Gordon, Elmont, NY (Harold Pokel of counsel), for appellants.
Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (John E. Brigandi and Ali Degan of counsel), for respondent.
BETSY BARROS, J.P. LINDA CHRISTOPHER DEBORAH A. DOWLING JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Sandra Knight and Carlloyd C. Gowe appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated September 22, 2022. The order denied those defendants' motion, in effect, for summary judgment dismissing the complaint insofar as asserted against them for failure to comply with RPAPL 1304 and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Carlloyd C. Gowe for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
In October 2013, the plaintiff commenced this action against the defendants Sandra Knight and Carlloyd C. Gowe (hereinafter together the defendants), among others, to foreclose a mortgage on property located in Brooklyn. In April 2022, the Supreme Court granted the plaintiff an extension of time to serve Gowe pursuant to CPLR 306-b. Thereafter, the plaintiff filed an affidavit of service indicating that Gowe was served pursuant to CPLR 308(2) on May 31, 2022, at an address located in Utica (hereinafter the Utica address).
In July 2022, the defendants moved, in effect, for summary judgment dismissing the complaint insofar as asserted against them based on the plaintiff's failure to comply with RPAPL 1304 and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Gowe for lack of personal jurisdiction. In an order dated September 22, 2022, the Supreme Court denied the defendants' motion. The defendants appeal.
"A process server's affidavit of service constitutes prima facie evidence of proper service" (Newlands Asset Holding Trust v Vasquez, 218 A.D.3d 786, 788 [internal quotation marks omitted]; see Bank of N.Y. v Ilonzeh, 203 A.D.3d 1119, 1120). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (Federal Natl. Mtge. Assn. v Grossman, 205 A.D.3d 770, 771 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d 736, 738; Scarano v Scarano, 63 A.D.3d 716, 716). "The sworn denial of receipt of service must be a detailed and specific contradiction of the allegations in the process server's affidavit" (Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d at 738 [internal quotation marks omitted]; see Tuttnauer USA Co., Ltd. v Russo, 216 A.D.3d 846, 847).
Here, the process server's affidavit of service reflects that Gowe was served pursuant to CPLR 308(2) on May 31, 2022, by delivery of the summons and complaint to a person of suitable age and discretion at the Utica address, which was the address listed on Gowe's current driver license, followed by the required mailing to the same address. Gowe's unsupported averment that he did not reside at the Utica address at the time of service was insufficient to rebut the presumption of proper service created by the process server's affidavit (see Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d at 739; Bank of N.Y. Mellon v Lawson, 176 A.D.3d 1155, 1157). Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Gowe for lack of personal jurisdiction.
Furthermore, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, for summary judgment dismissing the complaint insofar as asserted against them based on the plaintiff's failure to comply with RPAPL 1304. The defendants' bare denial of receipt of the RPAPL 1304 notice was insufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them (see MTGLQ Invs., L.P. v Cacioppo, 217 A.D.3d 939, 941; Nationstar Mtge., LLC v Matles, 185 A.D.3d 703, 707; Citibank, N.A. v Conti-Scheurer, 172 A.D.3d 17, 24).
The defendants' remaining contentions are not properly before this Court.
BARROS, J.P., CHRISTOPHER, DOWLING and TAYLOR, JJ., concur.