INDYMAC BANK v. KAMEN (2009)

In an action to foreclose a mortgage, the defendant Stuart M. Kamen appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated November 17, 2008, which granted the plaintiff's motion for summary judgment, and denied his cross motion to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law.   In opposition, the appellant 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).

 Contrary to the appellant's contention, the notice of default sent to him by the respondent duly afforded him an opportunity to cure his default, as required by the terms of the subject mortgage.   Furthermore, the notice of default otherwise substantially complied with the terms of the mortgage (see First Trust Natl. Assn. v. Meisels, 234 A.D.2d 414, 651 N.Y.S.2d 121;  Federal Home Loan Mtge. Corp. v. Cool, 1995 Me Super LEXIS 126, *4-5;  cf. Moet II v. McCarthy, 229 A.D.2d 876, 646 N.Y.S.2d 64).

 The appellant's contentions with respect to improper service of the summons and complaint are without merit.   The affidavit from the respondent's process server constituted prima facie evidence of proper service pursuant to CPLR 308(2), and the appellant failed to raise a triable issue of fact (see Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d 524, 525, 865 N.Y.S.2d 286;  Remington Invs. v. Seiden, 240 A.D.2d 647, 658 N.Y.S.2d 696).