| Contimortgage Corp. v Isler |
| 2008 NY Slip Op 01697 [48 AD3d 732] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Contimortgage Corporation, Respondent, v Albert Isler etal., Defendants, and Roger Whitehead, Appellant. |
—[*1] Jordan S. Katz, P.C., Melville, N.Y. (Michael Lowe of counsel), for respondent.
In a mortgage foreclosure action, the defendant Roger Whitehead appeals from an order ofthe Supreme Court, Kings County (Ruditzky, J.), dated January 10, 2007, which denied hismotion to vacate a judgment of foreclosure and sale entered June 10, 2003, and a foreclosure saleconducted on July 31, 2003, or in the alternative, for damages for "the amount of the ForeclosureSale proceeds that were lost and not obtained by reason of Defendant Whitehead's not appearingin this Foreclosure Action" and for payment of the surplus of $43,095.98 to him on the groundthat an order of the same court (Mason, J.), dated February 4, 2002, erroneously directed serviceupon him by publication.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the appellant's motion which was to vacate so much of the judgment of foreclosure andsale as is against him, and substituting therefor a provision granting that branch of the motion; asso modified, the order is affirmed, without costs or disbursements.
The appellant was a junior lienholder in the instant action, based upon a judgment entered infavor of him against Albert Isler, the owner of the subject property. The Kings County Clerk'sdocket entry stated that the judgment was entered in an action in the "Eastern District DistrictCourt" under index No. 3893/97. That Kings County Clerk docket entry mistakenly listed theappellant's address as the subject property, and listed Isler's address as another address inBrooklyn where the appellant in fact resided.
The summons prepared by the plaintiff in the instant action listed both Isler's address and theappellant's address as the subject property. In an affidavit, the process server stated that hereceived [*2]a copy of the summons and complaint and attemptedto serve both Isler and the appellant personally at the subject property, which was vacant. Theprocess server further stated that he was unable to locate either Isler or the appellant afterchecking the local branch of the United States Post Office to determine if there were forwardingaddresses from the subject property, checking the local telephone directory for Brooklyn,conducting a credit header search, and checking the records of the New York State Departmentof Motor Vehicles and the Surrogate's Court, Kings County. Based upon that affidavit, theplaintiff moved for leave to serve both Isler and the appellant by publication. By order datedFebruary 4, 2002, that motion was granted, and the appellant was served by publication. On June10, 2003 a judgment of foreclosure and sale was entered and on July 31, 2003 the property wassold at auction.
By order to show cause dated July 24, 2006, the appellant moved to vacate the judgment offoreclosure and sale and the foreclosure sale. In support of his motion, the appellant asserted thathe resided at the same address in Brooklyn, listed as Isler's address on the docket entry, since1993 and never resided at the subject property. He further noted that the process server neverexamined the judgment he docketed against Isler, which listed the name, address, and telephonenumber of his attorney. The attorney submitted an affidavit stating that he was attorney of recordfor the appellant with respect to the judgment against Isler and maintained the same officeaddress and telephone number since 1985. The Supreme Court denied the appellant's motion,finding that service by publication was proper since service pursuant to CPLR 308 (1), (2), and(4) was "impracticable."
CPLR 308 (5) provides that service of process upon a natural person may be effected "insuch manner as the court, upon motion without notice, directs, if service is impracticable underparagraphs one, two and four of this section" which provide for service by personal delivery,delivery and mail, and nail and mail, respectively. The impracticability standard "does not requirethe applicant to satisfy the more stringent standard of 'due diligence' under CPLR 308 (4)" normake an actual showing that service has been attempted pursuant to CPLR 308 (1), (2), and (4)(see State St. Bank & Trust Co. vCoakley, 16 AD3d 403, 403 [2005] [internal quotation marks omitted]; Home Fed.Sav. Bank v Versace, 252 AD2d 480, 481 [1998]; Astrologo v Serra, 240 AD2d 606[1997]). Once the impracticability standard is satisfied, due process requires that the method ofservice be "reasonably calculated, under all the circumstances, to apprise" the defendant of theaction (Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]). Serviceby publication is "the method of notice least calculated to bring to a potential defendant'sattention the pendency of judicial proceedings" (Boddie v Connecticut, 401 US 371, 382[1971]).
CPLR 315 provides that service by publication is permissible upon order of the court in anaction described in CPLR 314 "if service cannot be made by another prescribed method withdue diligence" (emphasis supplied). An action described in CPLR 314 is an action wherethe person of the defendant is out of state but the res of the action— e.g., a lien or propertyinterest—is located within the state. "Technically, service by publication can still be foundeven in the personam case, despite its being restricted by CPLR 315 to rem cases [since] [a] courtmay order service by publication on a CPLR 308 (5) application in a personam action. . . but it is obviously a last resort [which] [i]f it is done, it should at least beaccompanied by some other method" (Siegel, NY Prac § 107, at 195 [4th ed]).
Service by publication in a mortgage foreclosure action is permissible where the mortgagor isevading service (see State St. Bank &Trust Co. v Coakley, 16 AD3d 403 [2005]; OCI Mtge. Corp. v Murphy, 258AD2d 633 [1999]; Home Fed. Sav. Bank v Versace, 252 AD2d at 481; Dime Sav.Bank of N.Y. v Mancini, 184 AD2d 989, 990 [1992]). However, in the instant case, there isno evidence that the appellant [*3]was evading service, nor isthere any evidence that he ever represented that his address was the subject property. Further,although the process server searched for his whereabouts through the records of the Surrogate'sCourt, he never examined the records of the United States District Court for the Eastern Districtof New York where the appellant's judgment against Isler was entered. Since the appellant's lienwas based upon a docketed judgment, some effort should have been made to ascertain hisaddress from the records of the court where that judgment was entered. Assuming arguendo thatservice pursuant to CPLR 308 (5) was proper, the court could have directed service bypublication and an alternative method such as mailing to his attorney in the District Court action.Service by publication alone was not reasonably calculated under the circumstances to apprisehim of the pendency of the action (see Mullane v Central Hanover Bank & Trust Co., 339US at 314). Accordingly, the judgment of foreclosure and sale should be vacated against him forlack of personal jurisdiction (see CPLR 5015 [a] [4]).
The appellant's remaining contentions are without merit or need not be addressed in light ofour determination. Spolzino, J.P., Skelos, Florio and Angiolillo, JJ., concur.