| Everhome Mtge. Co. v Berger |
| 2017 NY Slip Op 04817 [151 AD3d 811] |
| June 14, 2017 |
| Appellate Division, Second Department |
[*1]
| Everhome Mortgage Company, Appellant, v ArthurBerger, Also Known as Arthur S. Berger and Others, et al., Defendants, and Peretz Feder et al.,Respondents. |
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Edward Rugino of counsel), forappellant.
Abraham Hoschander, Brooklyn, NY, for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from (1) a decision of the SupremeCourt, Kings County (Sunshine, Ct. Atty. Ref.), dated June 23, 2014, made after a hearing todetermine the validity of service of process, and (2) an order of the same court (Kurtz, J.) datedNovember 12, 2014, which, upon the decision, denied the plaintiff's motion, inter alia, to confirma referee's report and for a judgment of foreclosure and sale, and directed the dismissal of theaction on the ground that the defendants Peretz Feder and Pesel Feder were not properly servedwith process.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the order is reversed, on the law and the facts, and the matter is remitted to theSupreme Court, Kings County, for a determination of the merits of the plaintiff's motion, interalia, to confirm a referee's report and for a judgment of foreclosure and sale; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff commenced this action to foreclose a mortgage. In February 2007, after thedefendants failed to answer the complaint, the Supreme Court granted the plaintiff's motion, interalia, for an order of reference. The referee's report was issued in July 2011. In November 2013,the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosureand sale. The defendants Peretz Feder and Pesel Feder (hereinafter together the Feder defendants)appeared and asserted, in opposing affidavits, that they had not been served with the summonsand complaint and, therefore, that the action should be dismissed. The matter was referred to aSpecial Referee for a hearing to determine the validity of service of process. After the hearing, atwhich the process server testified for the plaintiff and Peretz Feder testified for the Federdefendants, the Special [*2]Referee determined that the Federdefendants had not been properly served. Thereafter, the court, upon the decision, denied theplaintiff's motion and directed the dismissal of the action.
"In reviewing a determination made after a hearing, this Court's authority is as broad as thatof the hearing court, and this Court may render the determination it finds warranted by the facts,taking into account that in a close case, the hearing court had the advantage of seeing thewitnesses" (Deutsche Bank Natl. TrustCo. v Gordon, 129 AD3d 769, 769 [2015]; see Northern Westchester ProfessionalPark Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Thacker v Malloy, 148 AD3d 857[2017]; HSBC Bank USA, N.A. vHamilton, 116 AD3d 663, 663 [2014]).
Here, viewing the evidence in its totality, the plaintiff met its burden of proving by apreponderance of the evidence that jurisdiction over the Feder defendants was obtained by properservice of process (see Prosolov v PSRSRealty, 128 AD3d 934, 935 [2015]; Doubletree Hotel Tarrytown v Chacko, 115 AD3d 703, 704 [2014];cf. Thacker v Malloy, 148AD3d 857 [2017]; HSBC Bank USA, N.A. v Hamilton, 116 AD3d at 664). At thehearing, the plaintiff's process server testified that when he went to the mortgaged premises toserve the defendants named in the complaint as "John Doe," he ascertained the names of theFeder defendants by speaking to Peretz Feder, who identified himself as a tenant. The processserver unequivocally testified, relying in part on contemporaneous records, that he personallyserved Peretz Feder, and that he effected service on Pesel Feder by delivering process to PeretzFeder. This testimony was prima facie proof that the Feder defendants were properly servedpursuant to CPLR 308 (1) and (2) (see Prosolov v PSRS Realty, 128 AD3d at 935;Doubletree Hotel Tarrytown v Chacko, 115 AD3d at 704). Although Peretz Feder deniedthat he received process for himself and for Pesel Feder, who was his wife, his bare denial ofreceipt, and his testimony that there were certain inaccuracies in the process server's descriptionof him, was insufficient to support the Special Referee's determination that the Feder defendantswere not properly served (see Prosolov v PSRS Realty, 128 AD3d at 935; DoubletreeHotel Tarrytown v Chacko, 115 AD3d at 704). The plaintiff's remaining contentions neednot be reached in light of our determination. Accordingly, the Supreme Court erred in denyingthe plaintiff's motion, inter alia, to confirm the referee's report and for a judgment of foreclosureand sale, and in directing the dismissal of the action on the ground that the Feder defendants werenot properly served with process.
Since the Supreme Court did not consider the merits of the plaintiff's motion, we remit thematter to the Supreme Court, Kings County, for a determination of the merits of the motion (see Downey Sav. & Loan Assn., F.A.v Aribisala, 147 AD3d 911, 912 [2017]). Rivera, J.P., Leventhal, Austin and Cohen, JJ.,concur.