Opinion
2017–05032 Index No. 15349/11
08-28-2019
WELLS FARGO BANK, NA, etc., Respondent, v. Glen JOHNSTON, et al., Appellants, et al., Defendants.
Michael G. McAuliffe, Melville, N.Y. (Richard C. Ebeling of counsel), for appellants. Woods Oviatt Gilman LLP (Reed Smith LLP, New York, N.Y. [Joseph B. Teig and Andrew B. Messite ], of counsel), for respondent.
Michael G. McAuliffe, Melville, N.Y. (Richard C. Ebeling of counsel), for appellants.
Woods Oviatt Gilman LLP (Reed Smith LLP, New York, N.Y. [Joseph B. Teig and Andrew B. Messite ], of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Glen Johnston and Gwen Johnston, also known as Gwen M. Johnston, appeal from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated March 20, 2017. The order, insofar as appealed from, denied those defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendants Glen Johnston and Gwen Johnston, also known as Gwen M. Johnston (hereinafter together the defendants), and others to foreclose a mortgage encumbering certain property in Smithtown. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. The Supreme Court denied the motion, and the defendants appeal.
"[A] process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" ( Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ; see U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 ; Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 ). A bare and unsubstantiated denial of service is insufficient to rebut the presumption of proper service created by a duly executed affidavit of service, and a hearing is not required where "the defendant fails to swear to specific facts rebutting the statements in the process server's affidavit" ( US Natl. Bank Assn. v. Melton, 90 A.D.3d at 743, 934 N.Y.S.2d 352 ; see U.S. Bank, N.A. v. Arias, 85 A.D.3d 1014, 1015, 927 N.Y.S.2d 362 ; Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682 ). Here, the claimed discrepancies between the appearance of Glen Johnston and the description in the process server's affidavits were either too minor or insufficiently substantiated to warrant a hearing (see PNC Bank, N.A. v. Bannister, 161 A.D.3d 1114, 1115–1116, 77 N.Y.S.3d 452 ), and the evidence submitted in support of the defendants' motion did not establish that Glen Johnston was not present at the subject property when he was allegedly served with the summons and complaint.
Accordingly, we agree with the Supreme Court's denial of the defendants' motion to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.
SCHEINKMAN, P.J., RIVERA, COHEN and HINDS–RADIX, JJ., concur.