CHEMICAL BANK v. DARNLEY

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Supreme Court, Appellate Division, Second Department, New York.

CHEMICAL BANK, etc., Respondent, v. Curby DARNLEY, Appellant, et al., Defendants.

Decided: December 30, 2002

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, STEPHEN G. CRANE and WILLIAM F. MASTRO, JJ. Sol Mermelstein, Brooklyn, N.Y., for appellant. Rosicki, Rosicki & Associates, P.C., Carle Place, N.Y., (Andrew Morganstern of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Curby Darnley appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated December 14, 2001, which denied his motion to vacate a judgment of foreclosure and sale of the same court, dated August 8, 2000, entered upon his default in answering.

ORDERED that the order is affirmed, with costs.

The process server's affidavit, which stated that the defendant Curby Darnley was personally served at his residence, constituted prima facie evidence of proper service pursuant to CPLR 308(1) (see NYCTL 1997-1 Trust v. Nillas, 288 A.D.2d 279, 732 N.Y.S.2d 872;  Wieck v. Halpern, 255 A.D.2d 438, 680 N.Y.S.2d 599;  Green Point Sav. Bank v. Clark, 253 A.D.2d 514, 676 N.Y.S.2d 874).   Darnley's bare denial of service was “insufficient to dispute the veracity and content of the affidavit” (Manhattan Sav. Bank v. Kohen, 231 A.D.2d 499, 500, 647 N.Y.S.2d 256;  see also Wieck v. Halpern, supra;   Simmons First Natl. Bank v. Mandracchia, 248 A.D.2d 375, 669 N.Y.S.2d 646).   Accordingly, Darnley's motion to vacate the judgment for lack of personal jurisdiction (see CPLR 317, 5015) was properly denied by the Supreme Court without a hearing (see Manhattan Sav. Bank v. Kohen, supra;  Sando Realty Corp. v. Aris, 209 A.D.2d 682, 619 N.Y.S.2d 140).

Darnley's remaining contentions are without merit.

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