Appellate Division of the Supreme Court of New York, 2002

Kingsland Group, Inc. v. Pose

Appellate Division of the Supreme Court of New York · Decided July 8, 2002

296 A.D.2d 440; 744 N.Y.S.2d 715; 2002 N.Y. App. Div. LEXIS 7326

Cases that cite this one

7 later published cases cite this decision.

Engel v. Boymelgreen (Appellate Division of the Supreme Court of New York 2011)
Deutsche Bank National Trust Co. v. Pestano (Appellate Division of the Supreme Court of New York 2010)
Wells Fargo Bank v. Chaplin (Appellate Division of the Supreme Court of New York 2009)
TNT Petroleum, Inc v. Sea Petroleum, Inc. (Appellate Division of the Supreme Court of New York 2007)
Schwerner v. Sagonas (Appellate Division of the Supreme Court of New York 2006)
Elm Management Corp. v. Sprung (Appellate Division of the Supreme Court of New York 2006)
Manfredo v. Manfredo (Appellate Division of the Supreme Court of New York 2006)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to foreclose a mortgage, the defendant Albert Pose appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated June 8, 2001, which denied his motion to vacate a judgment of foreclosure and sale of the same court, dated December 18, 2000, and granted the plaintiff’s cross motion to terminate the receivership and direct the receiver to present his account.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the purpose of holding a hearing on the issue of whether personal jurisdiction was obtained over the appellant, and thereafter for a new determination of the motion and cross motion.

Without a hearing to determine the validity of service of process, the Supreme Court determined that the appellant had been properly served and denied his motion to vacate the judgment of foreclosure. However, in an affidavit in support of the motion, the appellant stated that he was never served with a summons and complaint in the action. Accordingly, since there *441was a sworn denial of receipt of process, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing (see Bank of Am. Natl. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Dime Sav. Bank of N.Y. v Steinman, 206 AD2d 404).

In light of this determination, we do not reach the appellant’s remaining contentions at this juncture. Santucci, J.P., McGinity, Luciano and Adams, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.