| Deutsche Bank Natl. Trust Co. v Gordon |
| 2015 NY Slip Op 04804 [129 AD3d 769] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Appellant, v Carol A. Gordon, Respondent, et al.,Defendants. |
Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), andEckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A.Cheverko of counsel), for appellant (one brief filed).
The Young Law Group, PLLC, Bohemia, N.Y. (Ivan E. Young of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Nassau County (Winslow, J.), entered April 17, 2013, which, after ahearing to determine the validity of service of process upon the defendant Carol A.Gordon, granted the motion of the defendant Carol A. Gordon, in effect, pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her for lack ofpersonal jurisdiction.
Ordered that the order is affirmed, with costs.
In December 2009, the plaintiff commenced this action to foreclose a mortgage. Thedefendant Carol A. Gordon (hereinafter the defendant) subsequently moved, in effect,pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her forlack of personal jurisdiction. Following a hearing to determine the validity of service ofprocess upon the defendant, at which the process server testified for the plaintiff, theSupreme Court granted the defendant's motion.
In reviewing a determination made after a hearing, this Court's authority is as broadas that of the hearing court, and this Court 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]; HSBC Bank USA, N.A. vHamilton, 116 AD3d 663, 663 [2014]; Fred Shore Beach Club, Inc. v Palmieri, 113 AD3d 648,648 [2014]). Here, we find no basis to disturb the Supreme Court's determination, basedupon its assessment of the credibility of the witness at the hearing, that service was notproperly effected upon the defendant (see Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d627, 629 [2014]; DeutscheBank Natl. Trust Co. v Pestano, 71 AD3d 1074, 1075 [2010]; McCray vPetrini, 212 AD2d 676, 676-677 [1995]).
Contrary to the plaintiff's contention, although the defendant served a notice ofappearance, under the circumstances of this case, she was not obligated to challenge thedefective [*2]service at that time, but, instead, was free tothereafter raise her objection to personal jurisdiction by a motion to dismiss pursuant toCPLR 3211 (a) (8), or by setting it forth as a defense in her answer as provided for inCPLR 3211 (see CPLR 320 [b]; 3211 [e]; Frederic v Israel, 104 AD3d 909, 910 [2013]). Since thedefendant moved to dismiss, in effect, pursuant to CPLR 3211 (a) (8), her service of thenotice of appearance did not constitute a waiver of the jurisdictional objection (seeFrederic v Israel, 104 AD3d at 910).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the defendant's motion, in effect,pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her forlack of personal jurisdiction.
In light of our determination, we need not reach the defendant's remainingcontention. Balkin, J.P., Roman, Maltese and Barros, JJ., concur.