| People v Rodriguez |
| 2020 NY Slip Op 01291 [180 AD3d 590] |
| February 25, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York,
Respondent, v Yancarlos Rodriguez, Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Rafael A. Curbelo of counsel), for respondent.
An appeal having been taken to this Court by the above-named appellant from a judgment of the Supreme Court, Bronx County (Judith Lieb, J.), rendered March 14, 2018, said appeal having been argued by counsel for the respective parties, due deliberation having been had thereon, and finding the sentence not excessive, it is unanimously ordered that the judgment so appealed from be and the same is hereby affirmed. Concur—Friedman, J.P., Richter, Webber, Singh, JJ.| Ocwen Loan Servicing, LLC, Respondent, v Ruhina B. Ali, Appellant, et al., Defendants. |
Fadullon Dizon Krul, LLP, Jericho (Alexander Krul of counsel), for appellant.
Stern & Eisenberg, P.C., Depew (Margaret J. Cascino of counsel), for respondent.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about July 31, 2019, which denied the motion of defendant Ruhina B. Ali to dismiss the complaint for lack of personal service and to set aside the foreclosure sale held on August 6, 2018, to vacate the foreclosure deed recorded on September 14, 2018, and to vacate the judgment of foreclosure and sale entered on March 21, 2017, unanimously affirmed, without costs.
Supreme Court providently found that jurisdiction was obtained over defendant by proper service of the summons and complaint. An affidavit of service constitutes prima facie evidence of proper service and the "mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service" (Matter of de Sanchez, 57 AD3d 452, 454 [1st Dept 2008] [internal quotation marks omitted]). In her affidavit, defendant denied that she was personally served because she had temporarily moved to a family member's home. Defendant's claim that she was never in her "dwelling place or usual place of abode" (CPLR 308 [2]) at the time service was allegedly effected upon her was not supported with documentary evidence (see U.S. Bank N.A. v Martinez, 139 AD3d 548, 549 [1st Dept 2016]).
Defendant's argument that she is shorter than the person described in the affidavit of service is insufficient to rebut the presumption of proper service (see e.g. JP Morgan Chase Bank v Dennis, 166 AD3d 530 [1st Dept 2018]), and defendant does not dispute that the other descriptions set forth in the affidavit of service, such as her age, weight, hair color, and skin color, match her description. Furthermore, defendant concedes that both her husband and a female tenant resided at the address where service was effectuated, and she does not dispute that they were of suitable age and discretion to have accepted service (see CPLR 308 [2]; Roberts v Anka, 45 AD3d 752, 754 [2d Dept 2007], lv dismissed 10 NY3d 851 [2008]). Concur—Friedman, J.P., Richter, Webber, Singh, JJ.