Opinion
2012-11-14
WELLS FARGO BANK, NA, etc., respondent, v. Yvonne CHAPLIN, appellant, et al., defendants.
Yvonne E. Chaplin, sued herein as Yvonne Chaplin, Rosedale, N.Y., appellant pro se. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), for respondent.
Yvonne E. Chaplin, sued herein as Yvonne Chaplin, Rosedale, N.Y., appellant pro se. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Andrew Morganstern of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and JEFFREY A. COHEN, JJ.
In an action to foreclose a mortgage, the defendant Yvonne Chaplin appeals from (1) an order of the Supreme Court, Queens County (Agate, J.), dated July 28, 2010, which, after a hearing, denied her motion, in effect, to vacate her default in appearing or answering the complaint, and (2) an order of the same court dated January 7, 2011, which denied her motion for leave to renew and reargue.
ORDERED that the order dated July 28, 2010, is affirmed; and it is further,
ORDERED that the appeal from so much of the order dated January 7, 2011, as denied that branch of the motion of the defendant Yvonne Chaplin which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated January 7, 2011, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
At a hearing to determine whether the defendant Yvonne Chaplin was properly served, the plaintiff established that the process server could not be compelled with due diligence to attend the hearing and, therefore, the process server's affidavit constituted admissible prima facie evidence of service ( seeCPLR 4531; Campoverde v. Parejas, 95 A.D.3d 1251, 944 N.Y.S.2d 895;Koyenov v. Twin–D Transp., Inc., 33 A.D.3d 967, 969, 824 N.Y.S.2d 338). The plaintiff's evidence at the hearing was sufficient to sustain its burden of proving, by a preponderance of the evidence, that Chaplin was properly served with the summons and complaint ( see Lopez v. DePietro, 82 A.D.3d 715, 716, 917 N.Y.S.2d 318;King v. Gil, 69 A.D.3d 678, 891 N.Y.S.2d 655;Anderson v. GHI Auto Serv., Inc., 45 A.D.3d 512, 513, 845 N.Y.S.2d 129), and we discern no basis for disturbing that determination. Therefore, the Supreme Court properly denied Chaplin's motion, in effect, to vacate her default in appearing or answering the complaint.
That branch of Chaplin's motion which was for leave to renew her prior motion was properly denied, since she failed to offer new facts on the motion which would have changed the prior determination ( seeCPLR 2221[e][2], [3] ).