| Washington Mut. Bank v Holt |
| 2014 NY Slip Op 00344 [113 AD3d 755] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Washington Mutual Bank, Respondent, v OscarHolt III, Appellant, et al., Defendants. |
—[*1] Stagg, Terenzi, Confusione & Wabnik, LLP, Garden City, N.Y. (Jacqueline M. DellaChiesa and Owen A. Kloter of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Oscar Holt III appeals from anorder of the Supreme Court, Queens County (Cullen, J.), entered December 8, 2011,which, after a hearing to determine the validity of service of process, denied thosebranches of his motion which were pursuant to CPLR 5015 (a), inter alia, to vacate ajudgment of foreclosure and sale entered against him upon his failure to appear oranswer, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him for lack of personal jurisdiction.
Ordered that the order is reversed, on the facts, with costs, and those branches of themotion of the defendant Oscar Holt III which were pursuant to CPLR 5015 (a) to vacatethe judgment of foreclosure and sale and pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against him for lack of personal jurisdiction are granted.
The plaintiff commenced this action against Oscar Holt III, among others, toforeclose a mortgage secured by a multiple dwelling (hereinafter the premises) owned byHolt and situated in Corona, Queens. To assure that those tenants who were inpossession of residential units at the premises would be bound by any subsequent entryof a judgment of foreclosure against Holt (see Nationwide Assoc. v Brunne, 216AD2d 547, 547 [1995]), the plaintiff allegedly attempted to join those tenants asdefendants in this action. The plaintiff's process server testified at a hearing that heattempted to serve process upon several tenants residing in apartments at the premises.The process server further testified that he served copies of the summons and complaintupon Holt at Holt's residence in Westbury by employing the "affix and mail" method(see CPLR 308 [4]), after unsuccessfully attempting personal delivery andservice pursuant to CPLR 308 (2) on four prior dates.
This Court possesses authority to review a determination rendered after a hearing thatis as broad as that of the hearing court, and may render the determination it findswarranted by the facts, taking into account that, in a close case, the hearing court had theadvantage of seeing the witnesses (see Northern Westchester Professional ParkAssoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Lopez v DePietro, 82 AD3d715, 716 [2011]; AmericanHome Mtge. v Villaflor, 80 AD3d 637 [2011]).
Although, as a general matter, we do not lightly disturb findings that are based uponconflicting evidence and implicate the credibility of witnesses, the evidence adduced atthe hearing [*2]warrants a reversal of the SupremeCourt's determination that process was properly effected upon Holt (see Matter ofChemical Bank v Davis, 133 AD2d 756 [1987]; Aronauer v Ohl, 80 AD2d592 [1981]). Here, there was evidence that, of the five people whom the process serverhad allegedly contacted on various dates at the premises owned by Holt, one had movedout of the premises prior to the time in question, three had been earlier evicted, and oneestablished through documentary evidence that he was physically in Atlanta, Georgia, onbusiness when the process server claimed the witness was in Queens. Where a witnesshas given testimony that is demonstrably false, we may, in accordance with the maximfalsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony givenby that witness (see DiPalma vState of New York, 90 AD3d 1659, 1660 [2011]; Accardi v City of NewYork, 121 AD2d 489, 490-491 [1986]; see generally People v Becker, 215NY 126, 144 [1915]). Under the circumstances presented here, we conclude that theprocess server's testimony with respect to the affix-and-mail service allegedly effectedupon Holt in Westbury should not be credited or believed.
Viewing the evidence in its totality, the plaintiff failed to meet its burden of provingby a preponderance of the evidence that jurisdiction over Holt was obtained by properservice of process (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343[2003]). Accordingly, the Supreme Court should have granted those branches of Holt'smotion which were pursuant to CPLR 5015 (a) to vacate the judgment of foreclosure andsale entered against him and pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against him for lack of personal jurisdiction
The appellant's remaining contentions have been rendered academic. Dillon, J.P.,Leventhal, Chambers and Miller, JJ., concur.