| 1136 Realty, LLC v 213 Union St. Realty Corp. |
| 2015 NY Slip Op 05651 [130 AD3d 590] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| 1136 Realty, LLC, Appellant, v 213 UnionStreet Realty Corp. et al., Defendants, and Daniel E. Wise,Respondent. |
Daniel S. Perlman, New York, N.Y. for appellant.
Weiss & Hiller, P.C., New York, N.Y. (Michael S. Hiller of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Partnow, J.), dated May 10, 2013, which denied itsmotion to reject a referee's report dated November 26, 2012, made after a hearing,finding that service of process was not properly effected upon the defendant Daniel E.Wise, and granted that defendant's cross motion to confirm the referee's report, vacate ajudgment of the same court entered January 5, 2011, upon his failure to answer thecomplaint, and dismiss the complaint pursuant to CPLR 3211 (a) (8).
Ordered that the order is affirmed, with costs.
In this mortgage foreclosure action, the plaintiff attempted to effect service upon thedefendant Daniel E. Wise (hereinafter the defendant) by the delivery of the summons andcomplaint to an individual of suitable age and discretion at the defendant's actual place ofbusiness. The referee who presided over the hearing to determine the propriety of serviceof process found that the address at which the papers were served was not the defendant'sactual place of business. In the order appealed from, the Supreme Court denied theplaintiff's motion to reject the referee's report finding that service of process was notproperly effected upon the defendant, and granted the defendant's cross motion toconfirm the referee's report, vacate a judgment entered January 5, 2011, upon his failureto answer the complaint, and dismiss the complaint pursuant to CPLR 3211 (a) (8).
CPLR 308 (2) provides, in part, that personal service upon a natural person shall bemade "by delivering the summons within the state to a person of suitable age anddiscretion at the actual place of business, dwelling place or usual place of abode of theperson to be served and by . . . mailing the summons to the person to beserved at his or her last known residence" (see Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980[2011]). "A person's 'actual place of business' must be where the person is physicallypresent with regularity, and that person must be shown to regularly transact business atthat location" (Rosario v NESMed. Servs. of N.Y., P.C., 105 AD3d 831, 833 [2013] [internal quotation marksomitted]; Selmani v City of NewYork, 100 AD3d 861, 861 [2012]). Here, there was no evidence presented at thehearing to indicate that the defendant was physically present with regularity and regularlytransacted business at the address where the summons and complaint weredelivered.
[*2] The plaintiff's remainingcontention is without merit.
Accordingly, the referee properly denied the plaintiff's motion to reject the referee'sreport finding that service of process was not properly effected upon the defendant, andgranted the defendant's cross motion to confirm the referee's report, vacate the judgmententered January 5, 2011, upon his failure to answer the complaint, and dismiss thecomplaint pursuant to CPLR 3211 (a) (8). Skelos, J.P., Hall, Sgroi and Barros, JJ.,concur.