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HSBC BANK USA, NATIONAL ASSOCIATION v. RUSSO

Index No. 380847/09. Appeal No. 16044. Case No. 2021-03938.

205 A.D.3d 647 (2022)

169 N.Y.S.3d 617

2022 NY Slip Op 03475

HSBC Bank USA, National Association, as Trustee under the Pooling and Servicing Agreement Dated as of November 1, 2006, Fremont Home Loan Trust 2006-D, Appellant, v. Thomas Russo, Respondent, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 31, 2022.

Attorney(s) appearing for the Case

Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Richard David Lane Jr. of counsel), for appellants.

Hach & Rose, LLP, New York (John A. Blyth of counsel), for respondent.

Concur—Acosta, P.J., Renwick, Singh, Moulton, Kennedy, JJ.

Defendant's affidavit sufficiently rebutted the presumption of service created by the affidavit of service of plaintiff's process server, as defendant averred that while the affidavit identified his address as the first floor of the subject property, he actually resided on the second floor, as the first floor was rented to a tenant, that 15 years earlier his hair had turned white, and that he was 5 feet, 8 inches, and not 5 feet, 11 inches (see NYCTL 2012-A Trust v Colbert...

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