The following papers numbered 1 to 37 were read on defendant Claudis Capital Resources, LLC's ("Claudis") motion to vacate its default and vacate the judgment of foreclosure and sale and referee's deed dated July 21, 2010 and intervenors Michael Ferro, Dominique Ferro and Stewart Pl. Yonkers, LLC's ("the Ferros") cross motion to intervene and have the Court declare that they are good faith purchasers for value.

Plaintiff allegedly commenced a mortgage foreclosure action on July 16, 2009 under index No. 15886/2009. However, this index number does not exist in the Westchester County Clerk's files; nor does it exist in the Court's Case Management [*2]system. Claudis annexes copies of a filing in index #15886/2009 from eCourt, but the Court has found no such filing. Nevertheless, Claudis claims to have served plaintiff with an answer in September 2009 and purchased an RJI in August 2011.

On July 21, 2009, plaintiff commenced an identical action under index # 16240/2009 ("the current action"). Claudis was served in this action by service upon the Secretary of State on July 22, 2009 pursuant to Section 303 of the Limited Liability Company Law. .

On or about September 24, 2009, Claudis served an answer on plaintiff under the index # 15886/2009. Claudis did not serve an answer in the action in the current action.

On March 15, 2010, a Judgment of Foreclosure and Sale was issued by the Court (Loehr, J.) and on July 21, 2010, a foreclosure sale was conducted by the Court-appointed referee and plaintiff was the successful bidder. A referee's deed was recorded in the Clerk's Office on October 5, 2010.

On April 20, 2011, the Ferros purchased the property from plaintiff and a deed was recorded in the Westchester County Clerk's office on June 29, 2011. The Ferros then conveyed title to the property to intervenor 13 Stewart Pl. Yonkers, LLC.

Claudis now moves to vacate the Judgment of Foreclosure and Sale and the July 21, 2010 referee's deed on the ground that it was never served with the summons and complaint in the current action. Further, upon its default in the current action, it claims it was not served with the notice required pursuant to CPLR 3215(g).

Claudis has not sufficiently rebutted that presumptionIn opposition, plaintiff argues that 1)per the affidavit of service it effected service upon the Secretary of State and that is presumed to be good service upon Claudis and 2) they did not appear in the action. Plaintiff also notes that Claudis' answer filed under index # 15886/2009 does not contain an affidavit of service nor was it ever filed in the Westchester County Clerk's Office.

The Ferros and 13 Steward Pl. Yonkers, LLC cross move for an order allowing them to intervene and to declare them owners of the property as good faith purchasers for value. They also seek to dismiss Claudis' motion.

CPLR 5015(a)(4) provides that the Court that issues a judgement may relieve a party from it on the ground that the Court lack jurisdiction to render a judgment against it (see Roberts v Anka, 45 AD3d 752, 846 N.Y.S.2d 280 [2nd Dept 2007]).

Here, Claudis contends that it was never served in the current action. Therefore, this Court had no jurisdiction over it and the action must be dismissed. However, in opposition plaintiff has submitted the affidavit of the process server who served the Secretary of State pursuant to section 303 of the Limited Liability Company Law.

"A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v. Scarano, 63 AD3d 716, 716, 880 N.Y.S.2d 682). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v. Coppotelli, Inc., 117 AD2d 135, 139, 502 N.Y.S.2d 479), no hearing is required where the defendant fails to swear to 'specific facts to rebut the statements in the process server's affidavits'" (Scarano v. Scarano, 63 [*3]AD3d at 716, 880 N.Y.S.2d 682, quoting Simonds v. Grobman, 277 AD2d 369, 370, 716 N.Y.S.2d 692).

Accordingly, Claudis has not rebutted the presumption of proper service. Moreover, while Claudis claims to have purchased an RJI in the action under index number #15886/2009 in 2011, it did nothing in that action or the current action for almost three years.

Moreover, " 'a judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded' " ( NAB Asset Venture IV, LLP v. Orangeburg Equities, 19 AD3d 565, 565, 796 N.Y.S.2d 536, quoting Green Point Sav. Bank v. Clarke, 220 AD2d 384, 385, 631 N.Y.S.2d 888).

In light of the above, Claudis' motion to vacate the Judgment of Foreclosure and Sale and July 21, 2010 referee's deed is DENIED.

Accordingly, the Ferros and 13 Stewart Pl. Yonkers' s motion to intervene and be declared good faith purchasers for value is GRANTED.