| Aurora Loan Servs., LLC v Gaines |
| 2013 NY Slip Op 02034 [104 AD3d 885] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Aurora Loan Services, LLC, Appellant, v SoniaGaines et al., Defendants, and Estate of Marjorie Colwell,Respondent. |
—[*1] Marcello de Peralta, PLLC, New York, N.Y. (Peter M. Spett of counsel), forrespondent.
In an action pursuant to RPAPL article 13 to foreclose a mortgage, the plaintiffappeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated June 10,2010, which, upon granting that branch of the motion of the defendant Estate of MarjorieColwell which was, in effect, for leave to intervene as of right, and after a hearing todetermine the validity of service of process, granted that branch of that defendant'smotion which was to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack ofpersonal jurisdiction.
Ordered that the order is affirmed, with costs.
Contrary to the plaintiff's contention, under the particular circumstances of this case,the Supreme Court correctly determined that the defendant Estate of Marjorie Colwellhad standing to challenge the plaintiff's service of process upon its personalrepresentative, the defendant Sonia Gaines (see generally Grosso v Estate of Gershenson, 33 AD3d 587[2006]; Matter of Harris, 21Misc 3d 239, 242 [2008]).
Furthermore, the Supreme Court properly directed a hearing to determine the validityof service of process upon Gaines. It is the plaintiff's burden to prove, by apreponderance of the evidence, that jurisdiction over the defendant was obtained viaproper service of process (seeGottesman v Friedman, 90 AD3d 608, 609 [2011]; Washington Mut. Bank v Holt,71 AD3d 670 [2010]; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589[2009]; Roberts v Anka, 45AD3d 752, 753 [2007]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d343 [2003]; see also Khodeevav Chi Chung Yip, 84 AD3d 1030 [2011]). A process server's affidavit ordinarilyconstitutes a prima facie showing of proper service (see U.S. Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011];Wells Fargo Bank, N.A. vChristie, 83 AD3d 824, 825 [2011]; Engel v Boymelgreen, 80 AD3d 653, 654 [2011];Washington Mut. Bank v Holt, 71 AD3d at 670; Wells Fargo Bank, NA vChaplin, 65 AD3d at 589; Roberts v Anka, 45 AD3d at 753; BankersTrust Co. of Cal. v Tsoukas, 303 AD2d at 343-344). Where the defendant submits asworn denial which specifically refutes the process server's affidavit, the prima facieshowing is rebutted and the plaintiff [*2]must establishjurisdiction by a preponderance of the evidence at a hearing (see Gray v Giannikios, 90AD3d 836, 837 [2011]; U.S. Bank, N.A. v Arias, 85 AD3d at 1015;Wells Fargo Bank, N.A. v Christie, 83 AD3d at 825; Engel vBoymelgreen, 80 AD3d at 654; City of New York v Miller, 72 AD3d 726, 727 [2010]).
Where service is effected pursuant to CPLR 308 (4), the so-called "nail and mail"method, the plaintiff must demonstrate that service pursuant to CPLR 308 (1) or (2)(personal service or residence service) could not be made with " 'due diligence' " (Estate of Waterman v Jones,46 AD3d 63, 65 [2007], quoting CPLR 308 [4]; see Gray v Giannikios, 90AD3d at 837; McSorley vSpear, 50 AD3d 652, 653 [2008]; Harkless v Reid, 23 AD3d 622, 623 [2005]). Thisrequirement must be " 'strictly observed, given the reduced likelihood that a summonsserved pursuant to that section will be received' " (McSorley v Spear, 50 AD3d at653, quoting Gurevitch v Goodman, 269 AD2d 355, 355 [2000]; see Estateof Waterman v Jones, 46 AD3d at 66; County of Nassau v Letosky, 34 AD3d 414, 415 [2006]).
Here, the plaintiff produced the process server's affidavit, which satisfied its primafacie burden regarding service. However, in her responsive affidavit, Gaines rebutted thatshowing by stating specifically that (1) she was never personally served in this action, (2)she had never resided at the address where the process server attempted personal serviceand eventually affixed the papers, and (3) the summons and complaint were neveraffixed to the door of the subject premises where she had lived for more than 20 years.This showing was sufficient to warrant a hearing (see Gray v Giannikios, 90AD3d at 837; U.S. Bank, N.A. v Arias, 85 AD3d at 1015; Wells Fargo Bank,N.A. v Christie, 83 AD3d at 825; Engel v Boymelgreen, 80 AD3d at 654;City of New York v Miller, 72 AD3d at 727; Washington Mut. Bank vHolt, 71 AD3d at 670-671; Wells Fargo Bank, NA v Chaplin, 65 AD3d at589; Mortgage Access Corp. vWebb, 11 AD3d 592, 593 [2004]; Bankers Trust Co. of Cal. v Tsoukas,303 AD2d at 344).
At the hearing, the plaintiff failed to demonstrate that its process server made agenuine effort to determine Gaines's correct address or that he made "quality" efforts toserve her with process (McSorley v Spear, 50 AD3d at 653; see In Ja Kim v Dong HeeHan, 37 AD3d 662 [2007]; County of Nassau v Letosky, 34 AD3d at415; Bank One Natl. Assn. vOsorio, 26 AD3d 452, 453 [2006]; Ben-Amram v Hershowitz, 14 AD3d 638 [2005]).Accordingly, the Supreme Court properly granted that branch of the plaintiff's motionwhich was to dismiss the complaint pursuant to CPLR 3211 (a) (8) on the basis that ithad failed to obtain personal jurisdiction over Gaines.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Hall, Lott andCohen, JJ., concur.