| US Bank, N.A. v Schumacher |
| 2019 NY Slip Op 03839 [172 AD3d 1137] |
| May 15, 2019 |
| Appellate Division, Second Department |
[*1]
| US Bank, National Association,Respondent, v Michelle Schumacher et al., Defendants, and Robert Schumacher,Appellant. |
Miller Rosado & Algios, LLP, Garden City, NY (Christopher Rosado of counsel), forappellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains, NY (Riyaz G. Bhimani ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Robert Schumacher appeals from an orderof the Supreme Court, Nassau County (Thomas A. Adams, J.), dated January 24, 2017. Theorder, insofar as appealed from, in effect, denied, without a hearing, that defendant's motionpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Nassau County for a hearing to determine whetherpersonal jurisdiction over the defendant Robert Schumacher was obtained, and a newdetermination of his motion thereafter.
In this mortgage foreclosure action, the defendant Robert Schumacher (hereinafter thedefendant) moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst him on the ground that he was not properly served with the summons and complaint. TheSupreme Court denied the motion without a hearing. The defendant appeals.
The Supreme Court should not have denied the defendant's motion pursuant to CPLR 3211(a) (8) to dismiss the complaint insofar as asserted against him without conducting a hearing.CPLR 308 (2) authorizes service, inter alia, by delivery of the summons within the state to aperson of suitable age and discretion at the actual place of business, dwelling place, or usualplace of abode of the person to be served, and by mailing the summons to the person to be servedat his or her last known residence or actual place of business. The term "usual place of abode"means a place at which the person lives with a degree of permanence and stability and to whichhe or she intends to return (see Feinstein v Bergner, 48 NY2d 234, 239 and n 3 [1979];HSBC Bank USA, N.A. v Whitter,159 AD3d 942, 945 [2018]; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 777[2017]).
"Ordinarily, a process server's affidavit of service constitutes prima facie evidence that thedefendant was validly served" (U.S.Bank, N.A. v Peralta, 142 AD3d 988, 988 [2016]; see Fuentes v Espinal, 153 AD3d 500, 501 [2017]; Citibank, N.A. v Balsamo, 144 AD3d964, 964 [2016]). "However, when a defendant submits a sworn denial of receipt of servicecontaining specific facts to refute the statements in the affidavit of the process server, the primafacie showing is rebutted and the plaintiff must establish personal jurisdiction by apreponderance of the evidence at a hearing" (U.S. Bank, N.A. v Peralta, 142 AD3d at988-989; see Fuentes v Espinal, 153 AD3d at 501; Citibank, N.A. v Balsamo, 144AD3d at 964).
Here, the plaintiff's affidavit of service constituted prima facie evidence of proper servicepursuant to CPLR 308 (2) upon the defendant (see Fuentes v Espinal, 153 AD3d at 501).The process server averred, inter alia, that on August 23, 2014, at 10:26 a.m., he served thedefendant with the summons and complaint in this action by delivering them to MichelleSchumacher, the defendant's wife, a person of suitable age and discretion, who indicated that thepremises were the defendant's dwelling place or usual place of abode in Hicksville.
However, the defendant rebutted the process server's affidavit through his specific avermentsthat, at the time of the purported service, on August 23, 2014, the Hicksville address was not hisresidence, actual dwelling place, or usual place of abode. More specifically, the defendantaverred that on August 23, 2014, he and his wife lived separate and apart, and that he lived inSouth Ozone Park, Queens. Moreover, the defendant submitted copies of a lease to the premisesin Queens covering the period from October 1, 2012, to October 1, 2014; a Con Edison bill forelectrical service at the address in Queens covering the period from July 30, 2014, to August 28,2014; and an order of the Supreme Court, Nassau County, dated March 9, 2010, in a priorforeclosure action commenced by the plaintiff's predecessor in interest, dismissing that action.The order dated March 9, 2010, inter alia, directed dismissal of the complaint in the prior actionupon a determination, made after a hearing to determine the propriety of service, that theHicksville address was not the defendant's actual dwelling place or his usual place of abode onAugust 28, 2008, the date of purported service in that action. The plaintiff's submissions inopposition to the defendant's motion failed to establish that service was proper.
Under these circumstances, the Supreme Court should have conducted a hearing to determinewhether the defendant was properly served pursuant to CPLR 308 (2) (see Bank of Am., N.A. v Tobing, 145AD3d 941, 942 [2016]; see alsoDeutsche Bank Natl. Trust Co. v Stolzberg, 165 AD3d 624, 625-626 [2018]; Bank of Am., N.A. v Latif, 148 AD3d967, 969 [2017]; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777-778).Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing todetermine whether personal jurisdiction over the defendant was obtained, and a newdetermination of his motion thereafter. Rivera, J.P., Dillon, Roman and Duffy, JJ., concur.