Iodice v Academics R Us, Inc.

[*1] Iodice v Academics R Us, Inc. 2015 NY Slip Op 51728(U) Decided on November 30, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 30, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570740/15

Claudio Iodice, Petitioner-Landlord-Respondent,

against

Academics R Us, Inc., Respondent-Tenant, - and - Arthur Santiago and Jeanette Santiago, Respondents-Appellants.

Respondents Arthur Santiago and Jeanette Santiago appeal from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), dated January 6, 2015, which denied their motion to dismiss the petition for lack of personal jurisdiction in a nonpayment summary proceeding.

Per Curiam.

Order (Ruben Franco, J.), entered on or about January 6, 2015, affirmed, with $10 costs.

We sustain the denial of respondents-appellants' motion to dismiss the nonpayment petition pursuant to CPLR 3211(a)(8). Respondent Arthur Santiago (Arthur) waived the defense of improper service by failing to raise it in his original answer and could not assert such defense in an amended answer, (see Urena v Nynex, Inc., 223 AD2d 442, 443-444 [1996]), even assuming he timely amended the answer as of right. In any event, the affidavit of petitioner's process server constitutes prima facie evidence of proper service pursuant to RPAPL 735(1) (see Reem Contr. v Altschul & Altschul, 117 AD3d 583, 584 [2014]), which Arthur failed to rebut with a sworn denial of service. The affirmation of respondents' counsel was insufficient to raise any issue of fact as to proper service (Lynch v New York City Tr. Auth., 12 AD3d 644, 646 [2004]).

Respondent Jeanette Santiago's motion to dismiss was untimely, since she did not timely answer the petition, obtain an extension of time to answer, or move for dismissal within the time when service of the answer was required (see Smith v Pach, 30 AD2d 707 [1968]). Jeanette is therefore in default. Our disposition is without prejudice to a motion by Jeanette to vacate her default or a motion by Arthur for leave to amend his answer to allege any nonjurisdictional defenses.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 30, 2015