| Deutsche Bank Natl. Trust Co. v Stolzberg |
| 2018 NY Slip Op 06513 [165 AD3d 624] |
| October 3, 2018 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company, as Trustee underPooling and Servicing Agreement Dated as of November 1, 2006, Securitized Asset BackedReceivable LLC Trust 2006-FR4 Mortgage Pass-Through Certificates Series 2006-FR4,Respondent, v Aryeh Stolzberg, Appellant, et al.,Defendants. |
Alexander T. Singer, Brooklyn, NY, for appellant.
Leopold & Associates (Greenberg Traurig, LLP, New York, NY [Shane M. Biffar andMarissa Banez], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Aryeh Stolzberg appeals from an order ofthe Supreme Court, Kings County (Mark I. Partnow, J.), dated June 14, 2016. The order, insofaras appealed from, denied those branches of that defendant's motion which were pursuant toCPLR 5015 (a) (4) to vacate an order of reference dated October 13, 2009, and to dismiss thecomplaint insofar as asserted against him for lack of personal jurisdiction or, in the alternative,pursuant to CPLR 317 to vacate his default in appearing or answering the complaint and forleave to interpose an answer.
Ordered that the order dated June 14, 2016, is reversed insofar as appealed from, on the law,with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing todetermine whether the defendant Aryeh Stolzberg was properly served with process and for anew determination thereafter of those branches of his motion which were pursuant to CPLR 5015(a) (4) to vacate the order of reference dated October 13, 2009, and to dismiss the complaintinsofar as asserted against him for lack of personal jurisdiction or, in the alternative, pursuant toCPLR 317 to vacate his default in appearing or answering the complaint and for leave tointerpose an answer.
In January 2008, this action to foreclose a mortgage was commenced against the defendantAryeh Stolzberg (hereinafter the defendant), among others. The defendant neither appeared noranswered the complaint. By assignment of mortgage dated October 30, 2008, the mortgage wasassigned to the plaintiff. In an order dated October 13, 2009 (hereinafter the order of reference),the Supreme Court, inter alia, granted the plaintiff's motion for leave to enter a default judgmentand for an order of reference, and referred the matter to a referee to ascertain and compute theamount due on the mortgage loan.
In April 2015, the defendant moved, inter alia, pursuant to CPLR 5015 (a) (4) to vacate theorder of reference and to dismiss the complaint insofar as asserted against him for lack ofpersonal jurisdiction or, in the alternative, pursuant to CPLR 317 to vacate his default in failingto appear or answer the complaint and for leave to interpose an answer. In the order appealedfrom, the Supreme Court denied the motion in its entirety. The defendant appeals from so muchof the order as denied those branches of his motion which were pursuant to CPLR 5015 (a) (4) tovacate the [*2]order of reference and to dismiss the complaintinsofar as asserted against him for lack of personal jurisdiction or, in the alternative, pursuant toCPLR 317 to vacate his default in appearing or answering the complaint and for leave tointerpose an answer.
"A process server's affidavit of service gives rise to a presumption of proper service" (Deutsche Bank Natl. Trust Co. vO'King, 148 AD3d 776, 776 [2017]; see Citibank, N.A. v Balsamo, 144 AD3d 964, 964 [2016])." 'Bare and unsubstantiated denials are insufficient to rebut the presumption ofservice' " (HSBC Bank USA,N.A. v Archibong, 157 AD3d 662, 662-663 [2018], quoting Rosemark Contrs., Inc. v Ness, 149AD3d 1115, 1116 [2017]). However, "[a] sworn denial containing a detailed and specificcontradiction of the allegations in the process server's affidavit will defeat the presumption ofproper service" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 776-777; seeCitibank, N.A. v Balsamo, 144 AD3d at 964; Frankel v Schilling, 149 AD2d 657,659 [1989]).
Here, the process server's affidavit set forth that substituted service pursuant to CPLR 308 (4)was made at the defendant's "[r]esidence within the state," listed as an address on 54th Street inBrooklyn (hereinafter the 54th Street address), by affixing a copy of the summons and complaintthere on January 17, 2008, at 8:27 a.m., after three prior unsuccessful attempts to effect servicethere on January 14, 2008, at 9:03 p.m., January 15, 2008, at 7:48 a.m., and January 16, 2008, at1:37 p.m., and by mailing a copy of the summons and complaint to the 54th Street address onJanuary 23, 2008.
In opposition, the defendant averred, inter alia, that the 54th Street address was not hisresidential address at the time of the alleged service, and that his residence, at all relevant times,was located at a different address on 53rd Street in Brooklyn (hereinafter the 53rd Streetaddress). He further averred that no attempt was ever made to serve him at the 53rd Streetaddress. Moreover, the defendant produced documentary evidence showing that the 53rd Streetaddress was known to the plaintiff, since it was listed in the mortgage documents as thedefendant's address.
Contrary to the plaintiff's contention, the defendant established his entitlement to a hearingon the issue of service (see Bank ofAm., N.A. v Tobing, 145 AD3d 941, 942 [2016]; Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d824, 825-826 [2014]; Dime Sav.Bank of Williamsburg v 146 Ross Realty, LLC, 106 AD3d 863, 864 [2013]; Toyota Motor Credit Corp. v Lam, 93AD3d 713, 714 [2012]; U.S. Bank,N.A. v Arias, 85 AD3d 1014, 1015-1016 [2011]).
Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing todetermine whether service of process was properly effected on the defendant, and for a newdetermination thereafter of those branches of his motion which were pursuant to CPLR 5015 (a)(4) to vacate the order of reference and to dismiss the complaint insofar as asserted against himfor lack of personal jurisdiction or, in the alternative, pursuant to CPLR 317 to vacate his defaultin appearing or answering the complaint and for leave to interpose an answer. Dillon, J.P.,Chambers, Maltese and Barros, JJ., concur.