Opinion
2012-12-26
NYCTL 2009–A TRUST, et al., respondents, v. Demetrios TSAFATINOS, et al., appellants, et al., defendants.
Demetrios Tsafatinos and Stamatiki Tsafatinos, Brooklyn, N.Y., appellants pro se (one brief filed). Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Josef F. Abt of counsel), for respondents.
Demetrios Tsafatinos and Stamatiki Tsafatinos, Brooklyn, N.Y., appellants pro se (one brief filed). Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Josef F. Abt of counsel), for respondents.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to foreclose on a real property tax lien, the defendants Demetrios Tsafatinos and Stamatiki Tsafatinos appeal from an order of the Supreme Court, Kings County (Steinhardt, J.), dated March 29, 2011, which granted the plaintiffs' motion for summary judgment on the complaint, and denied, without a hearing, their cross motion, inter alia, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
In this action to foreclose on a tax lien that arose as a result of the appellants' failure to pay certain sewer rents, sewer surcharges, and water rents, the plaintiffs demonstrated their prima facie entitlement to judgment as a matter of law by submitting proof that the appellants had made no payments on the subject tax lien ( see NYCTL 1996–1 Trust v. Orit Diagnostic Ctr., Inc., 19 A.D.3d 668, 798 N.Y.S.2d 88;NYCTL 1996–1 Trust v. Westmoreland Assoc., 2 A.D.3d 811, 812, 769 N.Y.S.2d 390). In opposition, the appellants failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Any challenges the appellants may have had to the bills or charges that resulted in the lien are subject to the exhaustion rule, requiring that “one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” ( Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560). Since the appellants failed to pursue the available administrative remedies ( see 15 RCNY ch 42, Appendix A, part IX, § 2), and none of the exceptions to the exhaustion doctrine applies here ( see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d at 57, 412 N.Y.S.2d 821, 385 N.E.2d 560;17 Fortune Corp. v. Town of Babylon, 96 A.D.3d 929, 929–930, 946 N.Y.S.2d 259;Town of Oyster Bay v. Kirkland, 81 A.D.3d 812, 815, 917 N.Y.S.2d 236,affd.19 N.Y.3d 1035, 978 N.E.2d 1237), the appellants were precluded from challenging the amounts of the charges in this action ( see NYCTL 1998–2 Trust v. T. Jan Realty Corp., 63 A.D.3d 810, 811, 881 N.Y.S.2d 137). In any event, “any dispute as to the amount of the lien may be resolved after a reference pursuant to RPAPL 1321” ( NYCTL 1999–1 Trust v. Stark, 21 A.D.3d 402, 403, 800 N.Y.S.2d 198).
The Supreme Court properly denied, without a hearing, that branch of the appellants' cross motion which was to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. “ ‘A process server's affidavit of service constitutes prima facie evidence of proper service’ ” ( Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983, 984, 912 N.Y.S.2d 96, quoting Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682;see Tikvah Enters., LLC v. Neuman, 80 A.D.3d 748, 749, 915 N.Y.S.2d 508;Associates First Capital Corp. v. Wiggins, 75 A.D.3d 614, 904 N.Y.S.2d 668). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing ( see Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” ( Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d at 984–985, 912 N.Y.S.2d 96 [internal quotation marks and some citations omitted]; see Tikvah Enters., LLC v. Neuman, 80 A.D.3d at 749, 915 N.Y.S.2d 508;Associates First Capital Corp. v. Wiggins, 75 A.D.3d at 614, 904 N.Y.S.2d 668;Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682;Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692).
Here, the affidavit by the appellant Stamatiki Tsafatinos amounted to no more than bare and conclusory denials of service which were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(1) and (2) created by the process server's affidavits ( see Citimortgage, Inc. v. Phillips, 82 A.D.3d 1032, 1033, 918 N.Y.S.2d 893;Associates First Capital Corp. v. Wiggins, 75 A.D.3d at 615, 904 N.Y.S.2d 668;Chemical Bank v. Darnley, 300 A.D.2d 613, 613, 752 N.Y.S.2d 397;Simonds v. Grobman, 277 A.D.2d at 370, 716 N.Y.S.2d 692).
The appellants' remaining contentions are improperly raised for the first time on appeal ( see NYU Hosp. for Joint Diseases v. Country Wide Ins. Co., 84 A.D.3d 1043, 1044, 925 N.Y.S.2d 89;Boddie–Willis v. Marziliano, 78 A.D.3d 978, 979, 911 N.Y.S.2d 640;Gartner v. Unified Windows, Doors & Siding, Inc., 68 A.D.3d 815, 816, 890 N.Y.S.2d 608;KPSD Mineola, Inc. v. Jahn, 57 A.D.3d 853, 854, 870 N.Y.S.2d 102).