Citimortgage, Inc. v. Phillips

82 A.D.3d 1032, 918 N.Y.2d 893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2011
• Status: Published

Opinion

The Supreme Court properly denied, without a hearing, the motion of the defendant Seibert R. Phillips (hereinafter the defendant), in effect, pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale on the ground of lack of jurisdiction. The affidavit of the plaintiffs process server constituted prima facie evidence of valid service upon the defendant of the summons and complaint pursuant to CPLR 308 (1) (see Prospect Park Mgt., LLC v Beatty, 73 AD3d 885, 886 [2010]). In response, the defendant offered only a bare and unsubstantiated denial of service, which was insufficient to rebut the presumption of proper service (see Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]; 96 Pierrepont v Mauro, 304 AD2d 631 [2003]).

Further, contrary to the defendant’s contention, the plaintiffs alleged failure to comply with CPLR 3215 (f) did not render the judgment a nullity, or warrant excusing his default (see Araujo v Aviles, 33 AD3d 830 [2006]). Rivera, J.P, Florio, Dickerson, Hall and Roman, JJ., concur.