| Cadlerock Joint Venture, L.P. v Kierstedt |
| 2014 NY Slip Op 05147 [119 AD3d 627] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Cadlerock Joint Venture, L.P.,Appellant, v Marcus Kierstedt, Respondent. |
Vlock & Associates, P.C., New York, N.Y. (Steven P. Giordano of counsel), forappellant.
Matthew S. Porges, Brooklyn, N.Y., for respondent.
In an action to recover on a promissory note, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Lewis, J.), entered November 13, 2012, which, after ahearing to determine the validity of service of process, granted the defendant's motion tovacate a judgment of the same court entered May 5, 2010, against him in the sum of$162,447.02, upon his default in appearing or answering, and thereupon directed thedismissal of the complaint.
Ordered that the order is affirmed, with costs.
On September 8, 2006, the defendant executed a promissory note in the principalsum of $153,800 and a second mortgage on certain property located in Brooklyn.Thereafter, the mortgage and note were assigned to the plaintiff Cadlerock Joint Venture,L.P. (hereinafter Cadlerock). In February 2009, Cadlerock and the defendant entered intoa written loan modification agreement.
On January 28, 2010, Cadlerock commenced the instant action to recover$160,490.15 on the promissory note. In March 2010, the defendant purportedly wasserved with process pursuant to the method described in CPLR 308 (4), commonlyknown as "affix-and-mail" service. On May 5, 2010, a judgment was entered against thedefendant in the sum of $162,447.02, upon his default in appearing or answering.Cadlerock sought to enforce the judgment by means of a wage garnishment, beginningon October 1, 2010.
By order to show cause dated October 19, 2010, the defendant, appearing pro se,moved to vacate the default judgment, claiming he was not properly served with processand did not receive notice of the commencement of the action prior to learning of theentry of the default judgment. In opposition, Cadlerock contended that the defendantwaived the defense of lack of personal jurisdiction by attempting to settle the action withrespect to his obligations under the note for the period of time between the date when helearned of the entry of the default judgment and the date when he moved to vacate thedefault judgment.
After a hearing to determine the validity of service of process, the Supreme Courtfound that the "process server was not credible in his testimony of due diligence since hefailed to [*2]put his attempts [at service] into his logbook." The Supreme Court noted that the process server was unable even to describe thesex of a neighbor of the defendant who allegedly verified that the defendant lived at 173Pulaski Street in Brooklyn, and did not enter a description of that neighbor in his notes,although there were spaces on his work ticket and the blank affidavit of service formwhere a description could have been entered. The court further found that the defendantdid not waive his defense of lack of personal jurisdiction by making voluntaryinstallment payments on the loan, and attempting to settle the dispute with the plaintiff inconnection with the loan. The Supreme Court vacated the default judgment, and directedthe dismissal of the complaint for lack of personal jurisdiction (see Cadlerock Joint Venture, LP vKierstedt, 37 Misc 3d 1212[A] [2010]).
A defendant may waive the issue of lack of personal jurisdiction by appearing in anaction, either formally or informally, without raising the defense of lack of personaljurisdiction in an answer or pre-answer motion to dismiss (see Taveras v City of NewYork, 108 AD3d 614, 617 [2013]; Frederic v Israel, 104 AD3d 909, 910 [2013]). A defendantmay also waive lack of personal jurisdiction by entering into a stipulation of settlementof the action (see Matter of Parkside Ltd. Liab. Co., 294 AD2d 582, 583-584[2002]; Lomando v Duncan, 257 AD2d 649 [1999]). Additionally, a defendantmay waive lack of personal jurisdiction by making payments pursuant to a judgment orwage garnishment for a substantial period of time (see Calderock Joint Ventures, L.P. v Mitiku, 45 AD3d 452,453 [2007]). However, where the defendant's only participation in the action is thesubmission of a motion to vacate a default judgment for lack of personal jurisdiction, thedefense of lack of personal jurisdiction is not waived (see HSBC Bank USA, N.A. vA&R Trucking Co., Inc., 66 AD3d 606, 607 [2009]).
In the instant case, the defendant's first participation in the action was the submissionof a motion to dismiss the complaint for lack of personal jurisdiction, made within onemonth of the effective date of the wage garnishment. Although the parties executed aloan modification agreement in 2009, that was accomplished prior to the commencementof the action. The fact that the defendant continued to make installment payments on theloan during the pendency of the action did not constitute a waiver of the defense of lackof personal jurisdiction, since those payments were made pursuant to the loan agreement,not a stipulation entered into in the instant action. Indeed, no stipulation was ever enteredinto in the instant action.
Service of process pursuant to the affix-and-mail provisions of CPLR 308 (4) is onlypermitted where service by personal delivery under CPLR 308 (1) or by delivery to aperson of suitable age and discretion and a subsequent mailing pursuant to CPLR 308 (2)"cannot be made with due diligence" (CPLR 308 [4]). " 'For the purpose ofsatisfying the due diligence requirement of CPLR 308 (4), it must be shown that theprocess server made genuine inquiries about the defendant's whereabouts and place ofemployment' " (Serrarov Staropoli, 94 AD3d 1083, 1085 [2012], quoting Estate of Waterman v Jones, 46AD3d 63, 66 [2007]). The process server's testimony that he inquired as to thedefendant's whereabouts from a neighbor was not credible, since he was unable toprovide any description of the neighbor—even a description of the neighbor's sex.The affidavit of service referred to the "person spoken to," but provided no furtherdescription, although spaces were provided to insert the person's sex, skin color, haircolor, approximate age, height, and weight.
The determination of the hearing court as to the credibility of the process servershould not be disturbed since the hearing court had the advantage of seeing and listeningto that witness. Moreover, the determination of the hearing court that service of processpursuant to CPLR 308 (4) was invalid should not be disturbed where, as here, it iswarranted by the facts (seeHSBC Bank USA, N.A. v Hamilton, 116 AD3d 663, 663-664 [2014]).Chambers, J.P., Austin, Hinds-Radix and Duffy, JJ., concur. [Prior Case History: 37Misc 3d 1212(A), 2012 NY Slip Op 52018(U).]