| HSBC Mtge. Corp. (USA) v Hollender |
| 2018 NY Slip Op 01907 [159 AD3d 883] |
| March 21, 2018 |
| Appellate Division, Second Department |
[*1]
| HSBC Mortgage Corporation(USA),Respondent, v Frieda Hollender, Appellant, et al.,Defendants. |
Solomon Rosengarten, Brooklyn, NY, for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Jessica L. Bookstaver of counsel),for respondent.
Appeal from an order of the Supreme Court, Kings County (Robin S. Garson, J.), datedDecember 16, 2015. The order, insofar as appealed from, denied that branch of the motion of thedefendant Frieda Hollender which was, in effect, pursuant to CPLR 5015 (a) (4) to vacate ajudgment of foreclosure and sale of that court dated March 6, 2015, entered upon her default inanswering or appearing, and to dismiss the complaint insofar as asserted against her for lack ofpersonal jurisdiction.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this mortgage foreclosure action in August 2009 against thedefendant Freida Hollender, among others. According to the affidavit of the plaintiff's processserver, Hollender was served with, inter alia, a copy of the summons and complaint at her homepursuant to CPLR 308 (4). It is not disputed that Hollender defaulted in answering or appearing.A judgment of foreclosure and sale dated March 6, 2015, was entered in favor of the plaintiff.Thereafter, Hollender moved, inter alia, in effect, pursuant to CPLR 5015 (a) (4) to vacate thejudgment of foreclosure and sale and to dismiss the complaint insofar as asserted against her forlack of personal jurisdiction. The Supreme Court denied the motion, and Hollender appeals.
Service of process upon a natural person must be made in strict compliance with the statutorymethods of service set forth in CPLR 308 (see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174[2015]; Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d 896, 896-897 [2013]). CPLR 308 requires that service beattempted by personal delivery of the summons "to the person to be served" (CPLR 308 [1]), orby delivery "to a person of suitable age and discretion at the actual place of business, dwellingplace or usual place of abode" (CPLR 308 [2]). Service pursuant to CPLR 308 (4), commonlyknown as affix and mail service, may be used only where service under CPLR 308 (1) or (2)cannot be made with "due diligence" (CPLR 308 [4]; see Feinstein v Bergner, 48 NY2d234, 238-239 [1979]; O'Connell vPost, 27 AD3d 630, 631 [2006]; Lemberger v Khan, 18 AD3d 447 [2005]). Since CPLR 308 (4)does not define "due diligence," it has been interpreted and applied on a case-by-case basis(see Barnes v City of New York, 51 NY2d 906, 907 [1980]; Estate of Waterman v Jones, 46 AD3d63, 66 [2007]). The due diligence requirement may be met with "a few visits on differentoccasions and at different times to the defendant's residence or place of business when thedefendant could reasonably be expected [*2]to be found at suchlocation at those times" (Estate of Waterman v Jones, 46 AD3d at 66; see Wells Fargo Bank, NA v Besemer,131 AD3d 1047, 1048 [2015]).
Here, the process server's affidavit, which reflects that he made three attempts to effectpersonal service at Hollender's residence at different times on different days when Hollendercould reasonably be expected to be home, constituted prima facie evidence of proper servicepursuant to CPLR 308 (4) (see DeutscheBank Natl. Trust Co. v White, 110 AD3d 759, 760 [2013]; Wells Fargo Bank, N.A. v Cherot, 102AD3d 768 [2013]; JPMorgan ChaseBank, N.A. v Szajna, 72 AD3d 902, 903 [2010]), and the affirmation of Hollender'scounsel, submitted in support of her motion, was insufficient to rebut the presumption of properservice or to warrant a hearing (seeCitimortgage, Inc. v Bustamante, 107 AD3d 752, 753 [2013]; US Natl. Bank Assn. v Melton, 90AD3d 742, 743 [2011]). Contrary to Hollender's contention, under the circumstances here,the plaintiff was not required to attempt to serve her at her workplace (see Deutsche BankNatl. Trust Co. v White, 110 AD3d at 760; JPMorgan Chase Bank, N.A. v Szajna, 72AD3d at 903).
Accordingly, the Supreme Court properly denied that branch of Hollender's motion whichwas, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment of foreclosure and sale andto dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. Austin,J.P., Roman, Sgroi and Brathwaite Nelson, JJ., concur.