Matrix Financial Services Corp. v. McKiernan

295 A.D.2d 579, 744 N.Y.S.2d 706, 2002 N.Y. App. Div. LEXIS 6742

Opinion

—In an action to foreclose a mortgage, the defendant Peter G. McKiernan appeals from (1) an order of the Supreme Court, Westchester County (Coppola, J.), dated February 6, 2001, which, inter alia, denied his motion to vacate a judgment of foreclosure and sale of the same court, dated September 19, 2000, and (2) an order of the same court, dated June 5, 2001, which denied his motion for leave to renew or reargue.

Ordered that the appeal from so much of the order dated June 5, 2001, as denied that branch of the appellant’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue (see Allen v Potruch, 282 AD2d 484); and it is further;

Ordered that the order dated June 5, 2001, is affirmed insofar as reviewed; and it is further,

Ordered that the order dated February 6, 2001, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The process server’s affidavit constituted prima facie proof of proper service pursuant to CPLR 308 (4), and the appellant’s conclusory allegations failed to rebut the veracity or content of the affidavit (see Gross v Fruchter, 230 AD2d 710; Sando Realty Corp. v Aris, 209 AD2d 682; Genway Corp. v Elgut, 177 AD2d 467; Colon v Beekman Downtown Hosp., 111 AD2d 841). Accordingly, the Supreme Court properly denied the appellant’s motion to vacate the judgment of foreclosure and sale.

Further, the Supreme Court properly denied the motion insofar as it was for leave to renew, as it was not based upon newly discovered evidence (see CPLR 2221; Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392).

The appellant’s remaining contention is without merit. O’Brien, J.P., H. Miller, Schmidt and Cozier, JJ., concur.