Board of Managers v. Foundry Development Co.

111 A.D.3d 776, 975 N.Y.S.2d 456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2013
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant Nirva Sanchez appeals from (1) an order of the Supreme Court, Orange County (McGuirk, J.), dated November 25, 2011, which denied her motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, and (2) second, third, and fourth orders of the same court, also dated November 25, 2011, the defendant Gerardo Sanchez appeals from all four orders dated November 25, 2011, and the defendant Joseph Suarez appeals from the fourth order dated November 25, 2011.

Ordered that the appeals by the defendant Nirva Sanchez from the second, third, and fourth orders dated November 25, 2011, are dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this court (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the appeals by the defendants Gerardo Sanchez and Joseph Suarez are dismissed, without costs or disbursements, for failure to perfect the same in accordance with the rules of this Court (see 22 NYCRR 670.8 [c], [e]); and it is further,

Ordered that the first order dated November 25, 2011, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff, payable by the appellant Nirva Sanchez.

The defendant Nirva Sanchez moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. However, her conclusory and unsubstantiated denial of service lacked the factual specificity and detail required to rebut the prima facie proof of proper service set forth in the process server’s affidavit of service, which was filed before she made her motion (see ACT Props., LLC v Garcia, 102 AD3d 712, 713 [2013]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763 [2012]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2010]; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984 [2010]). Moreover, the additional evidence and arguments she submitted in support of the motion to dismiss were improperly submitted for the first time in her reply papers (see Sawyers v Troisi, 95 AD3d 1293, 1294 [2012]; Matter of Allstate Ins. Co. v Dawkins, 52 AD3d 826, 827 [2008]; Mu Ying Zhu v Zhi Rong Lin, 1 AD3d 416, 417 [2003]; Klimis v Lopez, 290 AD2d 538 [2002]; Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 [1992]). The Supreme Court therefore properly denied her motion. Mastro, J.E, Angiolillo, Leventhal and Chambers, JJ., concur.