HSBC Bank USA v Desrouilleres

2015 NY Slip Op 04450 [128 AD3d 1013]

May 27, 2015

Appellate Division, Second Department

As corrected through Wednesday, July 1, 2015

[*1]

HSBC Bank USA, as Trustee for WFMBS 2007-04,Respondent, v Carla Desrouilleres, et al., Defendants, and Daphnee Doresca,Appellant.

Daphnee Doresca, Westbury, N.Y., appellant pro se.

Hogan Lovells US, LLP, New York, N.Y. (David Dunn, Chava Brandriss, and AfiyaM. Jordan of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Daphnee Doresca appeals froman order of the Supreme Court, Nassau County (Winslow, J.), dated September 15, 2013,which denied her motion, inter alia, to intervene as a party and, in effect, for leave tovacate a judgment of foreclosure and sale entered December 17, 2008, upon her failure toappear or answer the complaint.

Ordered that the order is affirmed, with costs.

In 2008, the plaintiff commenced this action to foreclose a mortgage after one of thedefendants, Carla Desrouilleres, defaulted on her residential mortgage loan for thesubject premises. Desrouilleres never answered or appeared in this action. As relevanthere, an affidavit of service was filed with the court averring that another defendant,Daphnee Doresca, who had an interest in the premises, also had been served in thisaction, pursuant to CPLR 308 (4), by "nail and mail" at the premises.

Thereafter, the plaintiff moved, inter alia, for leave to amend the caption to changethe names of the John Doe defendants in the caption to, among others, Daphnee Doresca,and for leave to enter a judgment of foreclosure and sale upon the defendants' failure toappear or answer the complaint. In September 2008, the Supreme Court granted theplaintiff's motion. A judgment of foreclosure and sale was entered December 17,2008.

In 2009, Doresca commenced a separate action against Desrouilleres, inter alia, toquiet title to the subject premises (hereinafter the related action). In the related action, theSupreme Court granted Doresca's motion to temporarily stay the foreclosure sale of thesubject premises in the instant action. Thereafter, in an order dated January 30, 2013, inthe related action, the court granted Doresca's motion for leave to enter a defaultjudgment and for title to the premises. On April 11, 2013, the court amended that orderto indicate that Doresca's title to the premises was subject to the plaintiff's mortgage lien,and the stay of the foreclosure sale in this action was lifted.

Thereafter, 41/2 years after the December 2008 judgment offoreclosure and sale in this action in favor of the plaintiff had been entered, Dorescamoved in this action, pursuant to CPLR [*2]1012 and1013, for leave to intervene as a party, to stay the foreclosure sale, and, in effect, forleave to vacate the judgment. Doresca contended that the court never acquired personaljurisdiction over her because she was not properly served with process, and that,therefore, her rights were unaffected by the December 2008 judgment of foreclosure. Inthe order appealed from, the Supreme Court denied Doresca's motion.

Contrary to Doresca's contention, personal jurisdiction over her in this actionattached when service on her was effected (see Green v Gross & Levin, LLP, 101 AD3d 1079,1080 [2012]; 425 E. 26th St.Owners Corp. v Beaton, 50 AD3d 845, 845-846 [2008]). The affidavit of theprocess server constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 845-846; Christiana Bank & Trust Co. vEichler, 94 AD3d 1170, 1170-1171 [2012]). Doresca's conclusory denial ofservice failed to rebut this presumption of proper service (see Francis v Francis, 48 AD3d512 [2008]; Remington Invs. v Seiden, 240 AD2d 647 [1997]; see also NYCTL 2009-A Trust vTsafatinos, 101 AD3d 1092 [2012]; cf. Ariowitsch v Johnson, 114AD2d 184, 185-186 [1986]). Accordingly, Doresca failed to establish that personaljurisdiction had not been acquired over her as a party defendant.

A nonparty to an action may seek intervention as of right pursuant to CPLR 1012, orby permission of the court pursuant to CPLR 1013 (see Borst v International Paper Co., 121 AD3d 1343, 1346[2014]). Since Doresca was already a party, that branch of her motion was unnecessary(see Donas v European Am. Bank & Trust Co., 106 Misc 2d 437, 439 [SupCt, NY County 1980]). In any event, although Doresca's motion was denominated as amotion for leave to intervene, in effect, she sought leave to vacate the judgment offoreclosure and sale entered December 12, 2008, upon her failure to appear or answer thecomplaint, and to stay the foreclosure sale in this action. However, Doresca failed toestablish either the requisites of CPLR 317 or 5015 for vacatur of her default.

Pursuant to CPLR 317, "[a] person served with a summons other than by personaldelivery to him [or her] or to his [or her] agent for service designated under rule 318,within or without the state, who does not appear may be allowed to defend the action" byseeking to vacate a default judgment within one year of learning of the judgment upondemonstrating a potentially meritorious defense (see CPLR 317; Matter of Rockland Bakery, Inc. vB.M. Baking Co., Inc., 83 AD3d 1080, 1082 [2011]; Winters v AlbanyExecutive House Apts., 102 AD2d 985 [1984]; Exchange Leasing Corp. vRoycliff Hired Car Serv., 47 AD2d 609 [1975]). Although a movant need not show areasonable excuse for a delay in making the motion (see Eugene Di Lorenzo, Inc. vA.C. Dutton Lbr. Co., 67 NY2d 138, 142 [1986]; Matter of Rockland Bakery,Inc. v B.M. Baking Co., Inc., 83 AD3d at 1081), the movant must still demonstrate,and the court must find, that "it did not receive actual notice of the summons andcomplaint in time to defend the action" (393 Lefferts Partners, LLC v New York Ave. at Lefferts, LLC,68 AD3d 976, 976-977 [2009]; see CPLR 317; Wassertheil v Elburg, LLC, 94AD3d 753, 753 [2012]; Matter of Rockland Bakery, Inc. v B.M. Baking Co.,Inc., 83 AD3d at 1081; Franklin v 172 Aububon Corp., 32 AD3d 454, 455 [2006]).Here, Doresca was aware of the judgment of foreclosure and sale at least as early asAugust 2009, when she moved in the related action for a stay of this action. In addition,Doresca failed to demonstrate that she did not receive actual notice of the summons andcomplaint in time to defend the action (see CPLR 317; Matter of RocklandBakery, Inc. v B.M. Baking Co., Inc., 83 AD3d at 1081-1082; 393 LeffertsPartners, LLC v New York Ave. at Lefferts, LLC, 68 AD3d at 976-977).

Moreover, Doresca failed to demonstrate that she had a potentially meritoriousdefense to the action (seeThakurdyal v 341 Scholes St., LLC, 50 AD3d 889, 890 [2008]; New York Hosp. Med. Ctr. ofQueens v Insurance Co. of State of Pa., 16 AD3d 391, 392 [2005]). For thatsame reason, vacatur pursuant to CPLR 5015 also is unavailable here (see CPLR5015 [a] [1]; Melish v Melish, 267 AD2d 218 [1999]; Starr Block Co. vTedesco, 146 AD2d 692 [1989]; Matter of Casey, 145 AD2d 632, 632[1988]; see also Matter ofCoates v Lee, 32 AD3d 539 [2006]).

As there was no basis to vacate Doresca's default, the Supreme Court also properlydenied that branch of her motion which was to stay the foreclosure sale in this action(see Getz v Stuyvesant Manor, 194 AD2d 589 [1993]; Shorehaven Assoc. vKing, 184 AD2d 764 [1992]).

[*3] Inlight of the foregoing, we need not consider Doresca's remaining contentions. Balkin,J.P., Hall, Miller and Duffy, JJ., concur.