Sando Realty Corp. v. Aris

209 A.D.2d 682, 619 N.Y.S.2d 140, 1994 N.Y. App. Div. LEXIS 11766

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 28, 1994
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud, the defendant Joram J. Aris appeals from an order of the Supreme Court, Nassau County (Brucia, J.), dated June 1, 1993, which denied his motion to strike the plaintiffs notice of inquest on the ground that he was not properly served with the summons and complaint.

Ordered that the order is affirmed, with costs.

The process server’s affidavit, which indicated that the appellant was served in accordance with CPLR 308 (2), constituted prima facie evidence of proper service and the appellant’s conclusory denial of receipt of the summons and complaint was insufficient to raise any issue of fact (see, Genway Corp. v Elgut, 177 AD2d 467; Colon v Beekman Downtown Hosp., 111 AD2d 841). Since the appellant failed to specifically refute the contents of the affidavit of service or to substantiate his conclusory allegation, the Supreme Court properly denied his motion without conducting a hearing on the issue of service (see, Genway Corp. v Elgut, supra; Colon v Beekman Downtown Hosp., supra).

Matters outside the record improperly raised by the appellant were not considered on this appeal. Sullivan, J. P., Balletta, Joy and Altman, JJ., concur.