| Bank of Am., N.A. v Latif |
| 2017 NY Slip Op 02010 [148 AD3d 967] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., as Successor by Merger to LaSalleBank National Association, as Trustee for Certificateholders of Bear Stearns Asset BackedSecurities I LLC, Asset Backed Certificates, Series 2006-HE10, Respondent, v Tausif A.Latif, Appellant, et al., Defendants. |
Petroff & Amshen LLP, Brooklyn, NY (Serge F. Petroff, Steven Amshen, and David R.Smith of counsel), for appellant.
McCabe, Weisberg & Conway, New Rochelle, NY (Kiyam J. Poulson of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Tausif A. Latif appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Richmond County (Minardo, J.), datedNovember 19, 2015, as denied those branches of his motion which were pursuant to CPLR 5015(a) (4) to vacate a judgment of foreclosure and sale of the same court dated February 2, 2010,entered upon his failure to appear or answer the complaint, and pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against him.
Ordered that the order dated November 19, 2015, is reversed insofar as appealed from, on thelaw, without costs or disbursements, and the matter is remitted to the Supreme Court, RichmondCounty, for a hearing and, thereafter, a new determination of those branches of the motion of thedefendant Tausif A. Latif which were pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale dated February 2, 2010, entered upon his failure to appear or answer thecomplaint, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him.
The plaintiff commenced this action to foreclose a mortgage against, among others, Tausif A.Latif. The Supreme Court issued a judgment of foreclosure and sale dated February 2, 2010,upon his failure to appear or answer the complaint. In or around October 2015, Latif moved, interalia, pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosure and sale and pursuantto CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him. In an order datedNovember 19, 2015, the Supreme Court denied Latif's motion. Latif appeals from so much of theorder as denied those branches of his motion.
"Service of process upon a natural person must be made in strict compliance with thestatutory methods of service set forth in CPLR 308" (FV-1, Inc. v Reid, 138 AD3d 922, 923 [2016]; see Washington Mut. Bank v Murphy,127 AD3d 1167, 1174 [2015]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 896-897[2013]). "A defendant's eventual awareness of pending litigation will not affect the absence ofjurisdiction over him or her where service of process is not effectuated in compliance with CPLR308" (Washington Mut. Bank v Murphy, 127 AD3d at 1174). Thus, "[a] defect in serviceis not cured by the defendant's subsequent receipt of actual notice of the commencement of the[*2]action" (Emigrant Mtge. Co., Inc. v Westervelt, 105AD3d at 897).
"Ordinarily, the affidavit of a process server constitutes a prima facie showing of properservice" (FV-1, Inc. v Reid, 138 AD3d at 923; see Scarano v Scarano, 63 AD3d 716, 716 [2009]). "However, asworn denial of service containing specific facts generally rebuts the presumption of properservice established by the process server's affidavit, and necessitates an evidentiary hearing" (Deutsche Bank Natl. Trust Co. vDaCosta, 97 AD3d 630, 631 [2012]).
CPLR 308 (4) provides that when service upon an individual under CPLR 308 (1) and (2)cannot be made with due diligence, service may be made "by affixing the summons to the door ofeither the actual place of business, dwelling place or usual place of abode within the state of theperson to be served and by either mailing the summons to such person at his or her last knownresidence or by mailing the summons by first class mail to the person [to be served] at his or heractual place of business" (see Estate ofWaterman v Jones, 46 AD3d 63, 65-66 [2007]).
Here, the process server's affidavit of service established, prima facie, that Latif was servedwith process pursuant to CPLR 308 (4) (see Scarano v Scarano, 63 AD3d 716 [2009]). However, in hisaffidavit submitted in support of his motion, Latif asserted that, at the time of the alleged service,he lived not at the address recited in the affidavit of service as being his dwelling place, but at themortgaged premises. Latif also submitted other evidence that tended to show that he lived at themortgaged premises at the time of the alleged service. He submitted the mortgage, whichcontained a provision obligating the borrower, Latif, to occupy the mortgaged premises for acertain period of time, and correspondence relating to the loan that was addressed to him at themortgaged premises. Further, Latif submitted material that called into question the veracity of theprocess server. Under the circumstances of this case, there must be a hearing on the issue ofwhether Latif was properly served (seeSileo v Victor, 104 AD3d 669, 670 [2013]; Agudo v Zhinin, 74 AD3d 712, 712-713 [2010]; Zion v Peters, 50 AD3d 894,894-895 [2008]; Thomas v Maloney, 289 AD2d 222 [2001]), including whether theplaintiff complied with the "due diligence" requirement of CPLR 308 (4). Mastro, J.P.,Leventhal, Barros and Brathwaite Nelson, JJ., concur.