Gottesman v Friedman

Gottesman v Friedman 2011 NY Slip Op 08906 Decided on December 6, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
JEFFREY A. COHEN, JJ.
2010-07156
(Index No. 26438/05)

[*1]Irene Gottesman, et al., respondents,

v

Evelyn Friedman, etc., et al., appellants, et al., defendants.




Orrick, Herrington & Sutcliffe LLP, New York, N.Y. (Elyse D.
Echtman, Melissa K. DePetris, and George T. Kimmet of counsel),
for appellants.
Tratner, Molloy & Goodstein LLP, New York, N.Y. (Jason Y.
Goodstein of counsel), for respondents.


DECISION & ORDER

In an action to foreclose a mortgage, the defendants Evelyn Friedman and Alexander Friedman appeal from an order of the Supreme Court, Queens County (Taylor, J.), entered June 30, 2010, which, after a hearing to determine the validity of service of process, denied their motion, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court entered December 5, 2006, upon their failure to appear or answer, on the ground that the court lacked jurisdiction to render a judgment, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and pursuant to CPLR 5015(a)(1) to vacate the judgment entered December 5, 2006, on the ground of excusable default.

ORDERED that the order is affirmed, with costs.

A judgment was entered against the appellants in this action on December 5, 2006, upon their failure to appear or answer. By order to show cause dated May 8, 2008, the appellants moved, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment on the ground that the court lacked jurisdiction to render a judgment, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and pursuant to CPLR 5015(a)(1) to vacate the judgment on the ground of excusable default. The appellants claimed, among other things, that they were not properly served with the summons and complaint in this action. The plaintiffs opposed the motion. The Supreme Court conducted a hearing to determine the validity of service of process. In the order appealed from, the Supreme Court denied the appellants' motion. We affirm.

"Service of process must be made in strict compliance with statutory methods for effecting personal service upon a natural person' pursuant to CPLR 308" (Santiago v Honcrat, 79 AD3d 847, 847-848 [some internal quotation marks omitted], quoting Macchia v Russo, 67 NY2d 592, 594). CPLR 308(1) authorizes service to be made "by delivering the summons within the state to the person to be served" (CPLR 308[1]; see Estate of Edward S. Waterman v Jones, 46 AD3d 63, 65). " The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that [*2]jurisdiction over the defendant was obtained by proper service of process'" (Santiago v Honcrat, 79 AD3d at 848 [some internal quotation marks omitted], quoting Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343).

Here, the plaintiffs established by a preponderance of the evidence, through two affidavits of service and evidence presented at the hearing to determine the validity of service of process, that the appellants were properly served pursuant to CPLR 308(1) (see e.g. Valiotis v Psaroudis, 78 AD3d 683, 684). In response, the appellants offered unsubstantiated denials, which were insufficient to rebut the presumption of proper service (see US Consults v APG, Inc., 82 AD3d 753). Further, the Supreme Court's credibility determinations following the hearing are entitled to deference, and we decline to disturb them on this appeal (see Santiago v Honcrat, 79 AD3d at 848). Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.

The appellants' remaining contentions are without merit or need not be reached in light of our determination.
FLORIO, J.P., HALL, AUSTIN and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court