CLAIMING IMPROPER SERVICE

BAC Home Loans Servicing, LP v Carrasco, 2018 NY Slip Op 02443, Decided on April 11, 2018, Appellate Division, Second Department:

"A process server's affidavit of service gives rise to a presumption of proper service (see Machovec v Svoboda, 120 AD3d 772, 772; Wells Fargo Bank, N.A. v Final Touch Interiors, LLC, 112 AD3d 813, 814). "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, 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 AD3d 716, 716 [citation omitted], quoting Simonds v Grobman, 277 AD2d 369, 370; see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005; Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824). Here, the affidavit of the defendant Andres H. Carrasco, which was submitted in support of his motion, inter alia, to dismiss the complaint insofar as asserted against him, set forth that he did not receive the pleadings, but did not deny the specific facts contained in the process server's affidavit (see U.S. Bank N.A. v Telford, 153 AD3d 881, 882; Bank of N.Y. v Samuels, 107 AD3d 653, 654; Christiana Bank & Trust Co. v Eichler, 94 AD3d 1170, 1171). Carrasco's conclusory assertion was inadequate to rebut the presumption of proper service (see U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988-989; Bank of N.Y. v Espejo, 92 AD3d 707, 708). Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances of this case, the order directing that hearing must be reversed, and the order made after the hearing must be vacated (see Wells Fargo Bank, N.A. v Decesare, 154 AD3d 717; Washington Mut. Bank v Huggins, 140 AD3d 858, 859)."