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Chemical Bank v. Darnley

Appellate Division of the Supreme Court of New York, Second Department
Dec 30, 2002
300 A.D.2d 613 (N.Y. App. Div. 2002)

Opinion

2002-01892

Argued November 8, 2002.

December 30, 2002.

In an action to foreclose a mortgage, the defendant Curby Darnley appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated December 14, 2001, which denied his motion to vacate a judgment of foreclosure and sale of the same court, dated August 8, 2000, entered upon his default in answering.

Sol Mermelstein, Brooklyn, N.Y., for appellant.

Rosicki, Rosicki Associates, P.C., Carle Place, N.Y. (Andrew Morganstern of counsel), for respondent.

Before: FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE, WILLIAM F. MASTRO, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The process server's affidavit, which stated that the defendant Curby Darnley was personally served at his residence, constituted prima facie evidence of proper service pursuant to CPLR 308(1) (see NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279; Wieck v. Halpern, 255 A.D.2d 438; Green Point Sav. Bank v. Clark, 253 A.D.2d 514). Darnley's bare denial of service was "insufficient to dispute the veracity and content of the affidavit" (Manhattan Sav. Bank v. Kohen, 231 A.D.2d 499, 500; see also Wieck v. Halpern, supra; Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375). Accordingly, Darnley's motion to vacate the judgment for lack of personal jurisdiction (see CPLR 317, 5015) was properly denied by the Supreme Court without a hearing (see Manhattan Sav. Bank v. Kohen, supra; Sando Realty Corp. v. Aris, 209 A.D.2d 682).

Darnley's remaining contentions are without merit.

SANTUCCI, J.P., KRAUSMAN, CRANE and MASTRO, JJ., concur.


Summaries of

Chemical Bank v. Darnley

Appellate Division of the Supreme Court of New York, Second Department
Dec 30, 2002
300 A.D.2d 613 (N.Y. App. Div. 2002)
Case details for

Chemical Bank v. Darnley

Case Details

Full title:CHEMICAL BANK, ETC., respondent, v. CURBY DARNLEY, appellant, et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 30, 2002

Citations

300 A.D.2d 613 (N.Y. App. Div. 2002)
752 N.Y.S.2d 397

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