| HSBC Bank USA, N.A. v Whitter |
| 2018 NY Slip Op 02146 [159 AD3d 942] |
| March 28, 2018 |
| Appellate Division, Second Department |
[*1](March 28, 2018)
| HSBC Bank USA, National Association, as Trustee for ACE2006-HE1, Respondent, v Leeroy Whitter, Appellant, et al.,Defendants. |
Solomon Rosengarten, Brooklyn, NY, for appellant.
Hogan Lovells US LLP, New York, NY (David Dunn, Chava Brandriss, and Ryan Sirianniof counsel), for respondent.
Appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated July 31,2015. The order denied, without a hearing, the motion of the defendant Leeroy Whitter to vacatea judgment of foreclosure and sale of the same court dated February 5, 2015, and to dismiss thecomplaint insofar as asserted against him.
Ordered that the order is affirmed, with costs.
On November 7, 2005, the defendant Leeroy Whitter (hereinafter the defendant) executed anote promising to repay the principal sum of $484,000. As security for the loan, the defendantexecuted and delivered a mortgage encumbering residential property in Canarsie, Brooklyn. Themortgage was subsequently assigned to the plaintiff.
The defendant defaulted on the loan by failing to make the payment due on July 1, 2008. InOctober 2008, the plaintiff commenced this mortgage foreclosure action against the defendantand others.
Service upon the defendant was accomplished pursuant to CPLR 308 (2). The plaintiff'sprocess server averred that, on October 15, 2008, he delivered the summons, complaint, andnotice required by RPAPL 1303 to "Veronica Cobourn (Family Member)," a person of suitableage and discretion at the subject property, "[s]aid premises being the defendant's dwelling placewithin the State of New York." The process server further averred that, on October 20, 2008, hemailed those documents to the defendant at the address of the subject property "by depositing atrue copy of the same in a postpaid, properly addressed envelope in an official depository underthe exclusive care and custody of the United States post office."
The defendant did not answer the complaint or timely appear in the action.
On or about February 18, 2009, the plaintiff's prior counsel, Steven J. Baum, P.C., moved forleave to enter a default judgment and for an order of reference. However, Administrative [*2]Order 548/10 of the Chief Administrative Judge of the Courts wentinto effect on October 20, 2010, imposing a requirement that a plaintiff's attorney in certainmortgage foreclosure actions submit an affirmation confirming the factual accuracy and theaccuracy of notarizations of all filings in support of foreclosure (see Bank of N.Y. Mellon v Izmirligil,144 AD3d 1063, 1065 [2016]). Consequently, the 2009 motion for a default judgment andan order of reference was withdrawn on December 2, 2010, in order to comply with therequirements of Administrative Order AO/548/10. During that time period, the defendant did notappear for settlement conferences held on April 8, 2010, and May 6, 2010.
On or about December 27, 2011, the law firm of Frenkel, Lambert, Weiss, Weisman &Gordon LLP was substituted as counsel for the plaintiff, and the plaintiff filed a second motionfor leave to enter a default judgment and for an order of reference. On April 29, 2013, theSupreme Court granted the motion and appointed a referee to compute the amount due andowing. In that order, the court stated, among other things, that the defendant "defaulted inpleading and no answer to the motion directed to the sufficiency of the complaint has beeninterposed by the [defendant] though the time to do so has expired."
On November 3, 2014, approximately 18 months after the Supreme Court directed the matterto a referee, the defendant's counsel filed a notice of appearance. On November 18, 2014, uponthe return of the referee's oath and report, the plaintiff moved for a judgment of foreclosure andsale. This motion was made on notice to the defendant's counsel, but he did not submitopposition papers or a cross motion. On February 5, 2015, the court signed a judgment offoreclosure and sale.
By order to show cause dated April 1, 2015, five months after the notice of appearance wasfiled, the defendant moved, in effect, pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and sale and to dismiss the complaint insofar as asserted against him for lack ofpersonal jurisdiction. He also sought dismissal of the complaint insofar as asserted against himpursuant to CPLR 3215 (c) based upon the plaintiff's alleged failure to timely take proceedingsfor the entry of a default judgment.
In support of his motion, the defendant submitted an affidavit wherein he denied residing atthe mortgaged premises "on October 15, 2008," when the process server delivered the papers toCobourn at that address. The defendant further averred that, on that specific date, he resided at adifferent address in Brooklyn, in nearby East Flatbush. In further support, the defendant annexedseveral documents from the year 2008 bearing his name and the alternate street address in EastFlatbush. However, the defendant did not specifically deny that he received a copy of thesummons and complaint or that the person served, Cobourn, was indeed a family member and aperson of suitable age and discretion. Moreover, many of the documents bearing the EastFlatbush address did not include specific dates.
The Supreme Court denied the motion without a hearing. The defendant appeals, arguing thathe was entitled to a hearing to determine whether he was properly served with the summons andcomplaint. He has abandoned his contention that the complaint should be dismissed pursuant toCPLR 3215 (c). We affirm.
CPLR 308 (2) provides, in relevant part, that personal service upon a natural person may bemade "by delivering the summons within the state to a person of suitable age and discretion at theactual place of business, dwelling place or usual place of abode of the person to be served and byeither mailing the summons to the person to be served at his or her last known residence or bymailing the summons by first class mail to the person to be served at his or her actual place ofbusiness."
The affidavit of a process server constituted prima facie evidence of proper service (see U.S. Bank, N.A. v Tauber, 140AD3d 1154, 1155 [2016]; FV-1,Inc. v Reid, 138 AD3d 922, 923 [2016]; Machovec v Svoboda, 120 AD3d 772, 773 [2014]). To be entitledto vacatur of a default judgment under CPLR 5015 (a) (4), a defendant must overcome thepresumption raised by the process server's affidavit of service (see Deutsche Bank Natl. Trust Co. vO'King, 148 AD3d 776, 776 [2017]; Machovec v Svoboda, 120 AD3d at 773). Asworn denial of receipt of service containing "detailed and specific [*3]contradiction of the allegations in the process server's affidavit"may defeat the presumption of proper service (Machovec v Svoboda, 120 AD3d at 773;see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 776-777; Deutsche Bank Natl. Trust Co. vDaCosta, 97 AD3d 630, 631 [2012]; Bank of Am. Natl. Trust & Sav. Assn. vHerrick, 233 AD2d 351, 352 [1996]).
Contrary to the defendant's contention, the Supreme Court correctly determined that hisaffidavit and documents were insufficient to rebut the process server's affidavit, and, thus, that nohearing was warranted. In his affidavit, the defendant never denied receipt of the summons andcomplaint (cf. U.S. Bank, N.A. v Tauber, 140 AD3d at 1155). He never denied thatCobourn was a family member or that the mortgaged premises was his "usual place ofabode"—that is, "a place at which the defendant lives with a degree of permanence andstability and to which he [or she] intends to return" (Deutsche Bank Natl. Trust Co. vO'King, 148 AD3d at 777, citing Feinstein v Bergner, 48 NY2d 234, 239 n 3 [1979]).Further, he did not deny that the mortgaged premises was his last known residence. Additionally,the defendant did not indicate that he advised the original lender that he moved from themortgaged premises.
Under all of these circumstances, the defendant's sworn statement that he had a differentaddress on the specific date that the papers were delivered to his family member at the mortgagedpremises was insufficient to rebut the prima facie evidence of substitute service (see Wells Fargo Bank, N.A. v Walter,142 AD3d 992, 993 [2016]; U.S.Bank, N.A. v Peralta, 142 AD3d 988, 989 [2016]; U.S. Bank N.A. v Losner, 125 AD3d 640, 641 [2015]; cf. Emigrant Bank v Ramasir, 145AD3d 856 [2016]; U.S. Bank, N.A. v Tauber, 140 AD3d at 1155-1156).
Accordingly, the Supreme Court correctly denied the defendant's motion without holding ahearing. Rivera, J.P., Miller, Maltese and Connolly, JJ., concur.