On October 13, 2010, plaintiff commenced this residential mortgage foreclosure action. Although defendants William and Leigh-Elizabeth Todd were served pursuant to CPLR 308(2) they did not file an answer in this action.

Plaintiff now moves for an order of reference.

The Todds cross move for an order dismissing the action on the ground that they were not properly served. William Todd, appearing pro se and as counsel for Leigh-Elizabeth argues that the service upon "Jane" Todd on October 20, 2010 is invalid. Mr. Todd contends that only he and his 4 children under the age of 18 live at the subject premises. According to Mr. Todd, Leigh-Elizabeth Todd has not lived at that the premises since 2008 when she moved to Yonkers. Mr. Todd claims he was not home at that time of the alleged service.

Discussion

The Court will address the motions in the order it deems most logical.

The Todd's Cross Motion

An affidavit of a process server constitutes prima facie evidence that the defendant was validly served ( see U.S. Consults v. APG, Inc., 82 AD3d 753, 917 N.Y.S.2d 911 [2d Dept. 2011]; Washington Mut. Bank v. Holt, 71 AD3d 670, 897 N.Y.S.2d 148). While bare and unsubstantiated denials are insufficient to rebut the presumption of service ( see U.S. Consults v. APG, Inc., 82 AD3d 753, 917 N.Y.S.2d 911 [2d Dept. 2011]; Sturino v. Nino Tripicchio & Son Landscaping, 65 AD3d 1327, 885 N.Y.S.2d 625), a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing ( see Engel v. Boymelgreen, 80 AD3d 653, 915 N.Y.S.2d 596).

No hearing is necessary in this case. The affidavit of William Todd is conclusory and its veracity is suspect. The Court notes that in November 2010, Leigh-Elizabeth Todd commenced an action, Todd v Jamnis #29046/2010, against her former babysitter and the Department of Labor. In her complaint Leigh-Elizabeth Todd stated that she resided at the mortgaged premises, i.e. 7 Captain Theale Road, Bedford, NY. In the papers submitted in that action Ms. Todd represented that she resided at the mortgaged premises on several occasions. Thus, Ms. Todd cannot claim to reside at the subject premises in one action, but in another action claim she resides in Yonkers, NY (see generally Mahoney—Buntzman v. Buntzman, 12 NY3d 415, 881 N.Y.S.2d 369, 909 N.E.2d 62 [2009]).

Based on the foregoing, the Todd's cross motion to dismiss the complaint is DENIED.

Plaintiff's Motion for an Order of Reference

Plaintiff's motion is GRANTED and the order of reference signed herewith.

Dated: White Plains, New York

November 18, 2013

HON. WILLIAM J. GIACOMO