| Flagstar Bank, FSB v Campbell |
| 2016 NY Slip Op 01638 [137 AD3d 853] |
| March 9, 2016 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Appellant, v CliftonCampbell et al., Respondents. |
Stiene & Associates, P.C., Huntington, NY (Charles W. Marino of counsel), forappellant.
Berg & David, PLLC, Brooklyn, NY (Sholom Wohlgelernter and AbrahamDavid of counsel), for respondent Clifton Campbell.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Baily-Schiffman, J.), dated March 19, 2015, whichgranted that branch of the motion of the defendant Clifton Campbell which was pursuantto CPLR 3211 (a) to dismiss the complaint insofar as asserted against him, and, suasponte, directed the dismissal of the remainder of the complaint.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the remainder of the complaint is deemedto be an application for leave to appeal from that portion of the order, and leave to appealis granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, and the matter is remitted to theSupreme Court, Kings County, for a hearing to determine whether the defendant CliftonCampbell was properly served with process, and for a new determination of that branchof his motion which was pursuant to CPLR 3211 (a) to dismiss the complaint insofar asasserted against him thereafter; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by the defendantClifton Campbell.
The plaintiff commenced this action to foreclose a mortgage against, among others,the defendant Clifton Campbell, the mortgagor. In addition to seeking a judgment offoreclosure and sale, the complaint sought a deficiency judgment against Campbell.During the pendency of the action, Campbell conveyed the mortgaged premises to a thirdparty. Subsequently, Campbell moved pursuant to CPLR 3211 (a) (3) and (8) to dismissthe complaint insofar as asserted against him, or in the alternative, pursuant to CPLR3012 (d) to extend his time to serve an answer. In his motion, Campbell contended thatthe plaintiff lacked standing to commence the action and that he was not served withprocess. The Supreme Court granted that branch of the motion which was to dismiss thecomplaint insofar as asserted against Campbell and, sua sponte, directed the dismissal ofthe entire complaint against the other defendants on the ground that the plaintiff hadfailed to establish [*2]its standing to commence theaction. The plaintiff appeals.
On a motion to dismiss for lack of standing, " 'the burden is on the movingdefendant to establish, prima facie, the plaintiff's lack of standing, rather than on theplaintiff to affirmatively establish its standing in order for the motion to bedenied' " (HSBC BankUSA, N.A. v Lewis, 134 AD3d 764, 765 [2015], quoting Deutsche Bank Trust Co. Ams. vVitellas, 131 AD3d 52, 59-60 [2015]). Since Campbell failed to establish, primafacie, the plaintiff's lack of standing, the Supreme Court erred in directing the dismissalof the complaint on this ground.
As an alternate ground for affirmance, Campbell contends, as he did in the SupremeCourt, that the plaintiff did not obtain personal jurisdiction over him. While the affidavitof the plaintiff's process server constituted prima facie evidence of proper service ofprocess, in support of his motion, Campbell raised questions of fact as to whether he wasproperly served with process (see Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605,606 [2015]; American HomeMtge. Servicing, Inc. v Gbede, 127 AD3d 1004, 1005 [2015]; Central Mtge. Co. v Ward, 127AD3d 803, 803-804 [2015]). Accordingly, we remit the matter to the SupremeCourt, Kings County, for a hearing to determine whether Campbell was properly servedwith process, and for a new determination of that branch of his motion thereafter.
In light of our determination, we need not reach the plaintiff's remaining contention.Leventhal, J.P., Dickerson, Duffy and LaSalle, JJ., concur.