| HSBC Bank USA, N.A. v Hamilton |
| 2014 NY Slip Op 02261 [116 AD3d 663] |
| April 2, 2014 |
| Appellate Division, Second Department |
| HSBC Bank USA, National Association,Respondent, v Patricia Hamilton, Appellant, et al.,Defendants. |
—[*1] Sheldon May & Associates, P.C. (Stim & Warmuth, P.C., Farmingville, N.Y. [GlennP. Warmuth], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Patricia Hamilton appeals froman order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29,2013, which, after a hearing to determine the validity of service of process, in effect,denied those branches of her motion which were pursuant to CPLR 5015 (a) (4) to vacatea judgment of foreclosure and sale of the same court (Adler, J.), dated November 22,2011, entered against her upon her failure to appear or answer, and pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack of personaljurisdiction.
Ordered that the order is reversed, on the law and the facts, with costs, and thosebranches of the motion of the defendant Patricia Hamilton which were pursuant to CPLR5015 (a) (4) to vacate the judgment of foreclosure and sale dated November 22, 2011,and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againsther for lack of personal jurisdiction are granted.
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]).
At the hearing, the plaintiff's process server, who refreshed his recollection withcontemporaneous records, testified that he served the appellant with the summons andcomplaint by employing the personal delivery and mail method pursuant to CPLR 308(2), by delivering, inter alia, a copy of the summons and complaint to Ashley Hamilton, amember of the appellant's family, at the appellant's residence in Mount Vernon, andthereafter "doing a follow-up mailing." The Supreme Court properly found that theprocess server could not have delivered the summons and complaint to Ashley, sinceAshley established through her testimony and documentary evidence that she wasphysically in Petersburg, Virginia, at college, on the date delivery was allegedly made toher in Mount Vernon (seeWashington Mut. Bank v Holt, 113 AD3d 755 [2014]; Deutsche Bank Natl. Trust Co. vPestano, 71 AD3d 1074, 1075 [2010]). However, the Supreme Court's findingthat the process server [*2]delivered the summons andcomplaint to the appellant's youngest daughter, who, at the time of service, was15½ years old, was not warranted by the facts (cf. Samet v Binson, 67 AD3d 988 [2009]; Ortiz vJamwant, 305 AD2d 477, 478 [2003]). There was insufficient evidence at thehearing to establish that the description in the affidavit of service matched the actualappearance of the appellant's youngest daughter (see Warney v Haddad, 194AD2d 478, 479 [1993]; Matter of Chemical Bank v Davis, 133 AD2d 756, 757[1987]; Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]).Furthermore, neither the affidavit of service nor the process server's testimonyestablished that the summons and complaint were mailed to the appellant's last knownresidence (see CPLR 308 [2]).
Viewing the evidence in its totality, the plaintiff failed to meet its burden of provingby a preponderance of the evidence that jurisdiction over the appellant was obtained byproper service of process (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d343 [2003]). Accordingly, the Supreme Court should have granted those branches of theappellant's motion which were pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale entered against her and pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against her for lack of personal jurisdiction.
The appellant's remaining contention has been rendered academic. Rivera, J.P.,Dickerson, Cohen, Hinds-Radix and Maltese, JJ., concur.