Submitted - October 26, 2017
& Associates, PLLC, New York, NY (Satish K. Bhatia of
counsel), for appellant.
Such & Crane, LLP, Westbury, NY (Michael S. Hanusek of
counsel), and Sandelands Eyet LLP, New York, NY (Mitchell
Zipkin of counsel), for respondent (one brief filed).
RANDALL T. ENG, P.J. REINALDO E. RIVERA SHERI S. ROMAN
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Muhammad T.
Kamil appeals from an order of the Supreme Court, Nassau
County (Adams, J.), entered December 2, 2014, which denied
his motion, in effect, to vacate his default in appearing or
answering the complaint and to dismiss the complaint insofar
as asserted against him or, in the alternative, pursuant to
CPLR 2004 and 3012(d) to extend the time to file an answer.
that the order is affirmed, with costs.
2003, the defendant Muhammad T. Kamil (hereinafter the
defendant) borrowed the sum of $259, 000 from Greenpoint
Mortgage Funding, Inc. (hereinafter Greenpoint), and in
return executed a 30-year, fixed-rate note in that amount,
which was secured by a mortgage given to Mortgage Electronic
Registration Systems, Inc., as nominee for Greenpoint. After
the defendant defaulted on the loan by failing to make the
monthly mortgage payment due February 2010, the plaintiff, as
holder of the note, commenced this foreclosure action. The
defendant failed to appear or answer the complaint within the
time allowed (see CPLR 320), and failed to appear at
a mandatory conference (see CPLR 3408; Uniform Rules for
Trial Courts [22 NYCRR] § 202.12-a[c]). The defendant
subsequently moved to vacate his default for lack of personal
jurisdiction on the basis that he was never served with
process. The Supreme Court denied the motion, and the
defendant appeals. We affirm.
308(2) provides, in pertinent part, that personal service
upon a natural person may be made "by delivering the
summons within the state to a person of suitable age and
discretion at the actual place of business, dwelling place or
usual place of abode of the person to be served and by . . .
mailing the summons to the person to be served at his or her
last known residence." "Valid service pursuant to
CPLR 308 (2) may be made by delivery of the summons and
complaint to a person of suitable age and discretion who
answers the door at a defendant's residence, but is not a
resident of the subject property" (Bankof Ny v.
Espejo, 92 A.D.3d 707, 708).
process server's affidavit of service constitutes prima
facie evidence of proper service (see Summitbridge Credit
Invs., LLC v.Wallace, 128 A.D.3d 676; JPMorgan Chase
Bank, N.A. v. Todd, 125 A.D.3d 933). "Although a
defendant's sworn denial of receipt of service generally
rebuts the presumption of proper service established by a
process server's affidavit and necessitates an
evidentiary hearing, no hearing is required where the
defendant fails to swear to specific facts to rebut the
statements in the process server's affidavits"
(Deutsche Bank Natl. Trust Co. v.Quinones, 114
A.D.3d 719, 719; see Bank of N.Y. v. Samuels, 107
the process server's affidavit of service contained sworn
allegations reciting that service was made upon the defendant
by leaving the relevant papers with a person of suitable age
and discretion, namely "Sabir Ahmad, male relative,
" at the defendant's residence, and by subsequently
mailing a second copy of the papers to the defendant at the
same address (see CPLR 308). Accordingly, the affidavit of
service constituted prima facie evidence of service of the
summons and complaint pursuant to CPLR 308(2) (see U.S.
Bank N.A. v. Telford, 153 A.D.3d 881, 881-882; US
Bank N.A. v. Ramos, 153 A.D.3d 882, 884).
to the defendant's contention, his affidavit failed to
rebut the presumption of proper service arising from the
process server's affidavit as to service upon him. While
the defendant denied knowledge of any person by the name of
"Sabir Ahmad, " and asserted that no one by that
name ever resided at the premises, he did not rebut the
process server's sworn allegation that a person fitting
the physical description of Sabir Ahmad was present at the
subject property at the time and accepted service on behalf
of the defendant (see US Bank N.A. v. Ramos, 153
A.D.3d at 884; Washington Mut. Bank v. Huggins, 140
A.D.3d 858, 859; Bankof NY v. Espejo, 92 A.D.3d at
708; cf. Wachovia Bank, N.A. v. Greenberg, 138
A.D.3d 984, 985). Moreover, the defendant's conclusory
assertion that he did not receive the mailed papers was
similarly inadequate to overcome the inference of proper
mailing that arose from the affidavit (see Washington
Mut. Bank v. Huggins, 140 A.D.3d at 859; European
Am. Bank v. Abramoff, 201 A.D.2d 611, 612).
defendant's remaining contentions are without merit.
P.J., RIVERA, ROMAN and ...