Simonds v. Grobman

277 A.D.2d 369, 716 N.Y.S.2d 692, 2000 N.Y. App. Div. LEXIS 12487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Colar, J.), dated November 22, 1999, which denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) and granted the plaintiffs’ cross motion to strike the affirmative defense of lack of personal jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the ground that they had not been properly served with process pursuant to CPLR 308 (2). The process server’s affidavits constituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see, Wieck v Halpern, 255 AD2d 438; Simmons First Natl. Bank v Mandracchia, 248 AD2d 375; Remington Invs. v Seiden, 240 AD2d 647). The defendants failed to submit a sworn denial of service. Moreover, they did not swear to specific facts to rebut the statements in the process server’s affidavits (see, Walkes v Benoit, 257 AD2d 508; European Am. Bank v Abramoff, 201 AD2d 611). The affidavit of nonparty Frank Grobman was insufficient to raise a triable issue of fact, and the Supreme Court properly granted the plaintiffs’ cross motion to strike the defense of lack of personal jurisdiction without a hearing. O’Brien, J. P., Sullivan, Krausman, Goldstein and Schmidt, JJ., concur.