Bank of America, National Ass'n v. Valentino

Apr 15, 2015
2014-03782
Versions:127 A.D.3d 904
4 N.Y.S.3d 908
2015 NY Slip Op 03116

In an action to foreclose a mortgage, the defendant Vincent Valentino appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered February 3, 2014, which denied his motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

In opposition to the appellant‘s motion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, the plaintiff established that it re-served the appellant during the pendency of the motion. The plaintiff‘s re-service of the summons and complaint during the pendency of the appellant‘s motion effectively obviated the appellant‘s jurisdictional objection to the action against him (see IBJ Schroder Bank & Trust Co. v Zaitz, 170 AD2d 579 [1991]; Sirota v Kloogman, 140 AD2d 426, 427 [1988]; Helfand v Cohen, 110 AD2d 751 [1985]). The second affidavit of service constituted prima facie evidence of proper service of process pursuant to CPLR 308 (2) (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]; Bank of N.Y. Mellon v Scura, 102 AD3d 714, 715 [2013]; U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]). In response, the appellant failed to rebut the prima facie proof of proper service set forth in that affidavit of service (see Deutsche Bank Natl. Trust Co. v Quinones, 114 AD3d 719 [2014]; Scarano v Scarano, 63 AD3d 716, 716-717 [2009]).

The appellant‘s remaining contentions are either without merit or improperly raised for the first time on appeal in his reply brief (see Matter of Smith v Smith, 104 AD3d 860 [2013]; Fucile v L.C.R. Dev., Ltd., 102 AD3d 915, 920 [2013]). Accordingly, the Supreme Court properly denied the appellant‘s motion to dismiss the complaint insofar as asserted against him based on lack of personal jurisdiction (see IBJ Schroder Bank & Trust Co. v Zaitz, 170 AD2d 579 [1991]; Sirota v Kloogman, 140 AD2d at 427; Dashew v Cantor, 85 AD2d 619, 620 [1981]). Balkin, J.P., Hall, Roman and Cohen, JJ., concur.