Home Federal Savings Bank v. Mahood

260 A.D.2d 438, 686 N.Y.S.2d 717, 1999 N.Y. App. Div. LEXIS 3862

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 12, 1999
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Suffolk County (Lifson, J.), dated February 11, 1998, which, following a hearing to determine the propriety of service of process, denied their motion to vacate a default judgment of foreclosure and sale.

Ordered that the order is affirmed, with costs.

Contrary to the defendants’ contentions, the plaintiff satisfied its evidentiary burden at the hearing to determine the propriety of service of process (see, Meagher v ARA Serv., 242 AD2d 286; Wern v D'Alessandro, 219 AD2d 646) and established that jurisdiction was properly acquired over the defendants. The credible testimony of the process server demonstrated that service had been made upon the defendant Millicent R. Ma-hood, at her home, within minutes after the conceded service personally made upon the defendant Willard S. Mahood (see, Miller v Irwin, 202 AD2d 344). While the defendants offered conclusory testimony that the defendant Millicent R. Mahood was not served, this conflicting evidence raised a credibility issue. The hearing court’s credibility determination is entitled to great weight on appeal (see, Miale v Miale, 258 AD2d 444; Federal Natl. Mtge. Assn. v Roth, 240 AD2d 466). Since it is amply supported by the record, it will not be disturbed (see, Avco Mtge. Co. v Ward, 255 AD2d 347; Leonard v Grimes, 246 AD2d 630; Key Bank USA v Klein, 243 AD2d 688).

The defendants’ remaining contentions are without merit. Altman, J. P., Friedmann, McGinity and Luciano, JJ., concur.