CITY SUBURBAN FEDERAL SAVINGS BANK v. Edmundo Avila, et al., Third-Party Defendants-Respondents.

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

CITY & SUBURBAN FEDERAL SAVINGS BANK, Plaintiff-Respondent, v. Robert FRANK, et al., Defendants, Joseph Abruzese, Defendant Third-Party Plaintiff-Appellant; Edmundo Avila, et al., Third-Party Defendants-Respondents.

Decided: October 27, 1997

Before BRACKEN, J.P., and ROSENBLATT, COPERTINO and LUCIANO, JJ. Roger L. Esposito, White Plains, for appellant. McMillan, Constable, Maker, Murphy & Raymond, LLP, Larchmont (William Maker, Jr., of counsel), for third-party defendants-respondents.

In an action to foreclose a mortgage, the defendant third-party plaintiff Joseph Abruzese appeals from a resettled order of the Supreme Court, Westchester County (Donovan, J.), entered January 31, 1997, which, after a hearing to determine the validity of service of process of the summons and complaint upon him, denied his motion, inter alia, to vacate his default in appearing.   The notice of appeal from an order dated January 2, 1996, is treated as a premature notice of appeal from the resettled order entered January 31, 1997.

ORDERED that the resettled order is affirmed, with costs.

The testimony at the hearing to determine the validity of service of process supports the Supreme Court's determination that service was properly accomplished pursuant to CPLR 308(2).   The defect in the original affidavit of service was a mere technicality and not a jurisdictional defect (see, Best v. City of New York, 101 A.D.2d 847, 476 N.Y.S.2d 17;  Mariano v. Steinberg, 87 A.D.2d 606, 448 N.Y.S.2d 47;  Mrwik v. Mrwik, 49 A.D.2d 750, 372 N.Y.S.2d 693).

Although there is no evidence to contradict the appellant's claim that he did not personally receive notice of the summons in time to defend, he failed to offer a meritorious defense to the plaintiff's foreclosure action.   The appellant's application to open the judgment entered upon his default was therefore properly denied (see, CPLR 317;  Halali v. Gabbay, 223 A.D.2d 623, 636 N.Y.S.2d 838).

We have considered the appellant's remaining contention, and find it without merit.


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