| Wells Fargo Bank, NA v Burshstein |
| 2019 NY Slip Op 04223 [172 AD3d 1436] |
| May 29, 2019 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, Respondent, v GeneBurshstein, Appellant, et al., Defendants. |
Cooper & Paroff, P.C., Kew Gardens, NY (Henry M. Graham of counsel), forappellant.
Hogan Lovells US LLP, New York, NY (David Dunn and Christian Fletcher of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Gene Burshstein appeals from an order ofthe Supreme Court, Kings County (Derefim Neckles, Ct. Atty. Ref.), dated March 8, 2017. Theorder, after a hearing to determine the validity of service of process upon that defendant, ineffect, denied that branch of his motion which was, in effect, pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
On May 9, 2013, the plaintiff commenced this action against the defendant Gene Burshstein(hereinafter the defendant), among others, to foreclose a mortgage on property located at 2125Flatbush Avenue in Brooklyn. The defendant failed to answer the complaint. In an order datedNovember 14, 2014, the Supreme Court granted the plaintiff's motion for leave to enter a defaultjudgment and an order of reference. Thereafter, the court issued a judgment of foreclosure andsale dated January 29, 2016.
In June 2016, the defendant moved, inter alia, to vacate the order dated November 14, 2014,and the judgment of foreclosure and sale and, in effect, pursuant to CPLR 3211 (a) (8) to dismissthe complaint insofar as asserted against him for lack of personal jurisdiction. The plaintiffopposed the motion. In an order dated October 13, 2016, the Supreme Court referred the matterto a Referee to hear and determine the issue of the validity of service of process upon thedefendant. A hearing was held at which the process server and the defendant both testified. In anorder dated March 8, 2017, a Court Attorney Referee, in effect, denied that branch of thedefendant's motion which was to dismiss the complaint insofar as asserted against him for lack ofpersonal jurisdiction. The defendant appeals, and we affirm.
"The plaintiff bears the ultimate burden of proving by a preponderance of the evidence thatjurisdiction over the defendant was obtained by proper service of process" (Bankers Trust Co.of Cal. v Tsoukas, 303 AD2d 343, 343 [2003]; see HSBC Bank USA, N.A. v Hamilton, 116 AD3d 663, 664[2014]). "In reviewing a determination made after a hearing, this Court's authority is as broad asthat of the hearing court, and this Court may render the determination it finds warranted by thefacts, taking into account that in a close case, the hearing court had the advantage of seeing thewitnesses" (Deutsche Bank Natl. TrustCo. v Gordon, 129 AD3d 769, 769 [2015]; see Northern Westchester ProfessionalPark Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Everhome Mtge. Co. v Berger, 151AD3d 811, 812 [2017]; HSBC Bank USA, N.A. v Hamilton, 116 AD3d at 663).
Here, the plaintiff met its burden of proving by a preponderance of the evidence that thedefendant was properly served with the summons and complaint pursuant to CPLR 308 (2) at hisactual place of business (see Everhome Mtge. Co. v Berger, 151 AD3d at 812). We findno basis to disturb the Supreme Court's finding that the testimony of the process server was morecredible than that of the defendant (seeMastroianni v Rallye Glen Cove, LLC, 59 AD3d 686, 687 [2009]).
The defendant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination, in effect, to deny that branchof the defendant's motion which was, in effect, pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against him for lack of personal jurisdiction. Rivera, J.P., Cohen,Maltese and Brathwaite Nelson, JJ., concur.