Green Tree Servicing, LLC v. Frantzeskakis

200 A.D.3d 654

154 N.Y.S.3d 864 (Mem)

GREEN TREE SERVICING, LLC, appellant,

v.George FRANTZESKAKIS, respondent, et al., defendants.

2019–02308

Index No. 8362/10

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 26, 2021

December 1, 2021

Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Adam Wynn and Gregg L. Verrilli of counsel), for appellant.

Warshaw Burnstein, LLP, New York, NY (Pankaj Malik of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated November 21, 2018. The order, after a hearing to determine the validity of service of process, granted that branch of the motion of the defendant George Frantzeskakis which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendant George Frantzeskakis which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is denied.

"A process server's affidavit of service gives rise to a presumption of proper service" ( Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776, 51 N.Y.S.3d 523 ). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" ( id. at 776–777, 51 N.Y.S.3d 523 ). However, "[b]are and unsubstantiated denials are insufficient to rebut the presumption of service" ( HSBC Bank USA, N.A. v. Archibong, 157 A.D.3d 662, 662–663, 66 N.Y.S.3d 625 [internal quotation marks omitted]). "A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing" ( PNC Bank, N.A. v. Bannister, 161 A.D.3d 1114, 1115, 77 N.Y.S.3d 452 ). Further, "the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect" ( US Bank N.A. v. Cherubin, 141 A.D.3d 514, 516, 36 N.Y.S.3d 154 ). Here, notwithstanding alleged physical discrepancies, the process server averred that the person who answered the door, and on whom he served process, gave her name as Marina Frantzeskakis, and acknowledged she was the wife of the defendant George Frantzeskakis (hereinafter the defendant).

The process server's affidavit of service constituted prima facie proof of proper service on the defendant via substituted service on his wife (see CPLR 308[2] ). The affidavits submitted by the defendant...