| JPMorgan Chase Bank, N.A. v Grinkorn |
| 2019 NY Slip Op 03958 [172 AD3d 1183] |
| May 22, 2019 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, National Association, as Purchaser ofthe Loans and Other Assets of Washington Mutual Bank, Formerly Known as WashingtonMutual Bank, FA, Respondent, v Joseph Grinkorn, Appellant, et al., Defendants. |
Zisholtz & Zisholtz, LLP, Mineola, NY (Meng Cheng of counsel), for appellant.
Parker Ibrahim & Berg LLC, New York, NY (Scott W. Parker of counsel), forrespondent.
In an action, inter alia, to foreclose a mortgage, the defendant Joseph Grinkorn appeals fromtwo orders of the Supreme Court, Westchester County (Robert M. DiBella, J.), both dated March29, 2016, and an order of the same court (Lewis J. Lubell, J.) dated November 30, 2016. Theorders dated March 29, 2016, insofar as appealed from, (1) granted those branches of theplaintiff's motion which were to restore the action to the active calendar, for leave to enter adefault judgment against the defendant Joseph Grinkorn, to appoint a referee to compute theamount due to the plaintiff, to deem the summons and complaint timely served nunc pro tunc,and to reform the mortgage documents and for leave to amend the complaint and other litigationdocuments in the action nunc pro tunc to correct certain errors, and (2) denied, without a hearing,the cross motion of the defendant Joseph Grinkorn to dismiss the complaint insofar as assertedagainst him for lack of personal jurisdiction or, in the alternative, to vacate his default inappearing or answering the complaint and for leave to serve a late answer. The order datedNovember 30, 2016, insofar as appealed from, denied that branch of the motion of the defendantJoseph Grinkorn which was for leave to renew his cross motion and his opposition to theplaintiff's motion.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs.
The defendant Joseph Grinkorn (hereafter the appellant) executed, in favor of the plaintiff'spredecessor in interest, a series of promissory notes, secured by mortgages on certain residentialproperty, as well as consolidation, extension, and modification agreements (hereinafter CEMAs),consolidating the notes and mortgages. Upon the appellant's alleged default in making paymenton the debt, the plaintiff commenced this action to foreclose the consolidated mortgage and toreform the mortgage documents to correct certain errors. Service was allegedly made upon theappellant pursuant to CPLR 308 (2) by, on September 5, 2009, serving a copy of the summonsand complaint on a person of suitable age and discretion at the appellant's dwelling place,followed by a mailing. Upon discovering that the index number listed on the copies of thesummons and complaint served on the appellant contained a typographical error, the plaintiffre-served the appellant by, on April 28, 2010, affixing copies of the summons and complaintcontaining the correct index number to the door of the appellant's residence, followed by amailing. The appellant failed to appear or answer the complaint. In July 2010, within one year ofthe appellant's default, the plaintiff moved for an order of reference, but thereafter withdrew themotion.
In May 2014, the plaintiff moved, inter alia, to restore the action to the active calendar, forleave to enter a default judgment against the appellant, to appoint a referee to compute theamount due to the plaintiff, to deem the summons and complaint timely served nunc pro tunc,and to reform the mortgages and CEMAs and for leave to amend the complaint and otherlitigation documents in the action nunc pro tunc to correct certain errors. The appellantcross-moved to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction or, alternatively, to vacate his default in appearing or answering the complaint andfor leave to serve a late answer. In two orders dated March 29, 2016, the Supreme Court, amongother things, granted those branches of the plaintiff's motion and denied, without a hearing, theappellant's cross motion. The appellant thereafter moved, inter alia, for leave to renew his crossmotion and his opposition to the plaintiff's motion. In an order dated November 30, 2016, thecourt, among other things, denied that branch of the appellant's motion which was for leave torenew. The appellant appeals from the two orders dated March 29, 2016, and the order datedNovember 30, 2016.
As a threshold matter, the plaintiff demonstrated its entitlement to a default judgment againstthe appellant and an order of reference by submitting proof of service of a copy of the summonsand complaint, proof of the facts constituting the causes of action, including that the appellantdefaulted on his payment obligations, and proof that the appellant failed to appear or answerwithin the time allowed (see RPAPL 1321 [1]; CPLR 3215 [f]; Aurora Loan Servs., LLC v Movtady,165 AD3d 1025, 1026 [2018]; 21stMtge. Corp. v Palazzotto, 164 AD3d 1293, 1294 [2018]). Among other things, theplaintiff's submissions established its entitlement to reform the mortgages and CEMAs nunc protunc to correct certain scrivener's errors to accurately reflect the parties' agreement (see Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226-1227 [2014]), as well as its entitlement to leave toamend the complaint and other litigation documents nunc pro tunc to correct certaintypographical errors (see id. at 1226-1227; see also CPLR 2001; Key Bank Natl. Assn. v Stern, 14AD3d 656, 657 [2005]).
"To successfully oppose a facially adequate motion for leave to enter a default judgment andfor an order of reference based on the failure to appear or timely serve an answer, a defendantmust demonstrate a reasonable excuse for the delay and a potentially meritorious defense to theaction" (Aurora Loan Servs., LLC v Movtady, 165 AD3d at 1026-1027). However,where, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuantto CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question beforedetermining whether it is appropriate to grant a discretionary vacatur of the default under CPLR5015 (a) (1) (see Emigrant Mtge. Co.,Inc. v Westervelt, 105 AD3d 896, 897 [2013]).
The burden of proving that personal jurisdiction has been acquired over a defendant in anaction rests with the plaintiff (see WellsFargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2009]). A process server's affidavit ofservice constitutes prima facie evidence of proper service and, therefore, gives rise to apresumption of proper service (see USBank N.A. v Ramos, 153 AD3d 882, 884 [2017]; Wells Fargo Bank, NA vChaplin, 65 AD3d at 589). "A mere conclusory denial of service is insufficient to rebut thepresumption of proper service arising from the process server's affidavit" (Washington Mut. Bank v Huggins, 140AD3d 858, 859 [2016]). "In order to warrant a hearing to determine the validity of service ofprocess, the denial of service must be substantiated by specific, detailed facts that contradict theaffidavit of service" (id. at 859; see Machovec v Svoboda, 120 AD3d 772, 773-774 [2014]).
Here, we agree with the Supreme Court's determination that the appellant's submissions wereinsufficient to show that service of process was invalid, or to warrant a hearing to determine thevalidity of service (see Wells FargoBank, N.A. v Decesare, 154 AD3d 717, 718 [2017]; Washington Mut. Bank vHuggins, 140 AD3d at 859; HSBCBank USA, N.A. v Dalessio, 137 AD3d 860, 863 [2016]). Among other things, thetypographical error in the index number of the summons and complaint served on September 5,2009, was a nonjurisdictional defect which, in the absence of prejudice to the appellant, wassubject to correction (see Nikolaidis v Makita Corp., 242 AD2d 322, 323 [1997]). In anyevent, under the circumstances presented, the court providently exercised its discretion indetermining that an extension of time for service was warranted under CPLR 306-b, thereby, ineffect, validating the subsequent service made on April 28, 2010, nunc pro tunc (see Leader vMaroney, Ponzini & Spencer, 97 NY2d 95, 105-107 [2001]; Emigrant Bank v Estate of Robinson,144 AD3d 1084, 1085-1086 [2016]; Jhang v Nassau Univ. Med. Ctr., 140 AD3d 1018, 1019-1020[2016]; Thompson v City of NewYork, 89 AD3d 1011, 1012 [2011]).
Turning to the alternative branch of the appellant's cross motion, which was to vacate hisdefault in appearing and answering the complaint, the appellant failed to demonstrate areasonable excuse for his default (see Aurora Loan Servs., LLC v Movtady, 165 AD3d at1027). Therefore, it is unnecessary to determine whether he established a potentially meritoriousdefense (see id.; JP MorganChase Bank, N.A. v Russo, 121 AD3d 1048, 1049 [2014]).
Accordingly, we agree with the Supreme Court's determination, in the orders dated March29, 2016, denying, without a hearing, the appellant's cross motion, and granting the subjectbranches of the plaintiff's motion.
We also agree with the Supreme Court's determination, in the order dated November 30,2016, denying that branch of the appellant's motion which was for leave to renew his crossmotion and his opposition to the plaintiff's motion. The appellant failed to offer a reasonablejustification for his failure to submit the new evidence on the prior motion and cross motion(see CPLR 2221 [e]; Hernandezv Nwaishienyi, 148 AD3d 684, 687 [2017]; TD Bank, N.A. v Chaim, 140 AD3d 850, 850 [2016]; Deutsche Bank Trust Co. v Ghaness,100 AD3d 585, 586 [2012]). In any event, the appellant failed to demonstrate that theevidence would have changed the prior determination (see CPLR 2221 [e] [2], [3]; Wells Fargo Bank, N.A. v Chaplin, 100AD3d 744, 745 [2012]).
The appellant's remaining contention is improperly raised for the first time on appeal and,thus, is not properly before this Court (see Flagstar Bank, FSB v Titus, 120 AD3d 469, 470 [2014]).Dillon, J.P., Chambers, Miller and Duffy, JJ., concur.