HAMLET ON OLDE OYSTER BAY HOMEOWNERS ASSOCIATION INC v. ELLNER (2008)

In an action, inter alia, for an injunction compelling the defendants to remove all modifications and alterations to the garage and porch associated with their condominium unit made in violation of the plaintiff's condominium declaration and by-laws, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), dated July 24, 2007, as granted that branch of the plaintiff's motion which was for a preliminary injunction directing them to permit the plaintiff reasonable access to their condominium unit and associated structures for the purpose of conducting an inspection to ascertain the existence, nature, and extent of any such modifications or alterations.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court properly rejected the contention of the defendant Gladys Ellner that the plaintiff did not properly serve her with a copy of the order to show cause by which it initiated its motion, inter alia, for a preliminary injunction directing the defendants to permit it reasonable access to their condominium unit and associated structures.   The plaintiff sought access in order to conduct an inspection to ascertain the existence, nature, and extent of any modifications or alternations which may have been made by the defendants to the garage and porch associated with their unit, in alleged violation of the plaintiff's condominium declaration and by-laws.   The affidavits of the process server, which indicated that Gladys Ellner was simultaneously served with copies of the summons, complaint, order to show cause, and supporting papers, constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d 983, 983, 857 N.Y.S.2d 592;  Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343-344, 756 N.Y.S.2d 92), and the conclusory allegations to the contrary were insufficient to rebut the presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v. Schotter, 50 A.D.3d at 983, 857 N.Y.S.2d 592;  Remington Invs. v. Seiden, 240 A.D.2d 647, 647, 658 N.Y.S.2d 696).   A court need not conduct a hearing to determine the validity of the service of process where the defendant fails to raise an issue of fact regarding service (see Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375, 375, 669 N.Y.S.2d 646).   Moreover, by asserting a counterclaim unrelated to the plaintiff's causes of action, the defendant Gladys Ellner took “affirmative advantage of the court's jurisdiction” and waived any personal jurisdictional defense that she may have had (Textile Tech. Exch. v. Davis, 81 N.Y.2d 56, 58-59, 595 N.Y.S.2d 729, 611 N.E.2d 768;  see GE Capital Mtge. Servs. v. Mittelman, 238 A.D.2d 471, 471, 656 N.Y.S.2d 645).

The defendants' remaining contentions are without merit.