SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

U.S. BANK NATIONAL ASSOCIATION, AS

TRUSTEE FOR BANC OF AMERICA FUNDING
CORPORATION MORTGAGE PASS-THROUGH
CERTIFICATES,SERIES 2006-F,
0 COPY
Plaintiff,
REPLY AND AFFIRMATION
IN FURTHER SUPPORT OF
MOTION FOR ORDER OF
REFERENCE
MICHAEL KRICHEVSKY,NEW YORK STATE
Index No.: 506127/2016
DEPARTMENT OF TAXATION AND FINANCE,
UNITED STATES OF AMERICA BY THE INTERNAL
REVENUE SERVICE,CITY OF NEW YORK
PARKING VIOLATIONS BUREAU,JANE DOE,
MARIA TOMKEVYCH,
and JOHN DOE,

Defendant(s).

PLAINTIFF'S AFFIRMATION IN REPLY

Victoria E, Munian, Esq., the undersigned, an attorney admitted to practice in the

Courts of the State of New York, pursuant to CPLR 2106, and under the penalties of
peijury, affirms as follows:

1. That affirmant is an associate with Woods Oviatt Oilman LLP the attorneys of

record for the plaintiff in the above entitled action. As such, I am fiilly familiar

with the facts and circumstances surrounding the instant action.

2. This affirmation is submitted in reply to Defendant's opposition and in further

support of Plaintiffs Order of Reference.

3. The procedural and factual background ofthe instant case is set forth in the

Affirmation of Victoria E. Munian, Esq. and is incorporated herein.

4. Defendant's opposition is without merit because the Defendant is unable to vacate

his default in his instant opposition.

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 5. Accordingly, Plaintiff requests that the Defendant's opposition be denied and that

Plaintiffs motion be granted in its entirety.

ARGUMENT

6. The defendant alleges that his default should be vacated as he was not properly

served.

7. It should be noted that no default has been entered to date as Plaintiffs application

for an Order ofReference is still pending before this court.

8. Next, Defendant's reference to the prior action are moot and should be disregarded

as the prior action was discontinued.

9. The Defendant alleges that the prior note that he inspected is not the same as the one

he inspected during the prior action.

10. Even though the Defendant waived any standing argument by failing to timely

appear in this action, the argument is still without merit as attached to Plaintiffs

Complaint as Exhibit C is an attomey certified copy of the note, which is evidence

that the properly endorsed note was in possession of Plaintiff prior to

commencement. Nationstar Mte.. LLC v. Catizone. 127 AD3d 1151, 1152 (2nd

Dep't2015).

11. Next, the Defendant has failed to rebut the presumption of service as created by the

process server's affidavit.

12. The object of all service of process is said to be to give notice to the party on

whom service is made, that he may be aware of and may resist what is sought of

him, and it is a general rule that any service must be deemed sufficient which

renders it reasonably probable that the party proceeded against will be apprised of

what is going on against him, and have an opportunity to defend. Hiller v.

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 Burlington & M. R. R. Co.. 70 N.Y. 223(N.Y. 1877) See also Zelnick v. Bartlik.

46 Misc. 2d 1043, 261 N.Y.S.2d 573, 1965 N.Y. Misc. LEXIS 1892 (N.Y. Sup.

Ct. 1965). An affidavit of service by the plaintiffs process server which specifies

the papers served, the person who was served, and the date, time, address and sets

forth facts showing that service was made by an authorized person, and in an

authorized manner, constitutes prima facie evidence of proper service. Onewest

Bank FSB v Perez. 2012 N.Y. Misc. LEXIS 2328, 2012 NY Slip Op 31269(U)

(N.Y. Sup. Ct. May 4, 2012). A sworn denial of service by the defendant will

rebut the presumption of proper service only where it refutes factual allegations in

the process server's affidavit or presents a question of fact rather than baldly

denying receipt of process. Id.

13. The process server's affidavit shows that the Defendant was personally served on

June 17,2016. See Exhibit A.

14. Defendant's Opposition papers baldly state that there is no jurisdiction but he fails

to set forth a sworn statement rebutting any of the facts in the process server's

affidavit.

15. Further, it should be noted that the Defendant did not make the requisite motion

for lack ofjurisdiction once his answer was rejected on March 24, 2017, thus he

has waived any jurisdictional defenses.

16. Lastly, the Defendant references that relief should be granted under 5015(a)(4);

however this relief is inappropriate in the instant opposition and should be

brought under a separation motion.

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 CONCLUSION

17. As the Defendant has failed to properly rebut the presumption of service, raise any

triable issue of fact or move for the proper relief under CPLR 50j5, Plaintiffs

Motion should be granted.

Dated: October 31,2017

Victoria E. Munian, Esq.
WOODS OVIATT OILMAN LLP
Attorneysfor Plaintiff
700 Crossroads Building,2 State Street
Rochester, New York 14614

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