OCWEN LOAN SERVICING LLC v. New York City Environmental Control Board, et al., Defendants. (2020)

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about July 31, 2019, which denied the motion of defendant Ruhina B. Ali to dismiss the complaint for lack of personal service and to set aside the foreclosure sale held on August 6, 2018, to vacate the foreclosure deed recorded on September 14, 2018, and to vacate the judgment of foreclosure and sale entered on March 21, 2017, unanimously affirmed, without costs.

Supreme Court providently found that jurisdiction was obtained over defendant by proper service of the summons and complaint.  An affidavit of service constitutes prima facie evidence of proper service and the “mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service” (Matter of de Sanchez, 57 A.D.3d 452, 454, 870 N.Y.S.2d 24 [1st Dept. 2008] [internal quotation marks omitted] ).  In her affidavit, defendant denied that she was personally served because she had temporarily moved to a family member's home.  Defendant's claim that she was never in her “dwelling place or usual place of abode” (CPLR 308[2] ) at the time service was allegedly effected upon her was not supported with documentary evidence (see U.S. Bank N.A. v. Martinez, 139 A.D.3d 548, 549, 34 N.Y.S.3d 3 [1st Dept. 2016] ).

Defendant's argument that she is shorter than the person described in the affidavit of service is insufficient to rebut the presumption of proper service (see e.g. JP Morgan Chase Bank v. Dennis, 166 A.D.3d 530, 89 N.Y.S.3d 135 [1st Dept. 2018] ), and defendant does not dispute that the other descriptions set forth in the affidavit of service, such as her age, weight, hair color, and skin color, match her description.  Furthermore, defendant concedes that both her husband and a female tenant resided at the address where service was effectuated, and she does not dispute that they were of suitable age and discretion to have accepted service (see CPLR 308[2];  Roberts v. Anka, 45 A.D.3d 752, 754, 846 N.Y.S.2d 280 [2d Dept. 2007], lv dismissed 10 N.Y.3d 851, 859 N.Y.S.2d 613, 889 N.E.2d 492 [2008] ).