Kingsland Group, Inc. v. Pose

296 A.D.2d 440, 744 N.Y.S.2d 715, 2002 N.Y. App. Div. LEXIS 7326

Opinion

In an action to foreclose a mortgage, the defendant Albert Pose appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated June 8, 2001, which denied his motion to vacate a judgment of foreclosure and sale of the same court, dated December 18, 2000, and granted the plaintiff’s cross motion to terminate the receivership and direct the receiver to present his account.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the purpose of holding a hearing on the issue of whether personal jurisdiction was obtained over the appellant, and thereafter for a new determination of the motion and cross motion.

Without a hearing to determine the validity of service of process, the Supreme Court determined that the appellant had been properly served and denied his motion to vacate the judgment of foreclosure. However, in an affidavit in support of the motion, the appellant stated that he was never served with a summons and complaint in the action. Accordingly, since there was a sworn denial of receipt of process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing (see Bank of Am. Natl. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Dime Sav. Bank of N.Y. v Steinman, 206 AD2d 404).

In light of this determination, we do not reach the appellant’s remaining contentions at this juncture. Santucci, J.P., McGinity, Luciano and Adams, JJ., concur.