| Grand Pac. Mtge. Corp. v Pietranski |
| 2019 NY Slip Op 06755 [175 AD3d 1503] |
| September 25, 2019 |
| Appellate Division, Second Department |
[*1]
| Grand Pacific Mortgage Corp., Appellant, v RichardPietranski et al., Defendants, and Dawn Flaim, Respondent. |
Davidson Fink LLP, Rochester, NY (Richard N. Franco of counsel), for appellant.
Haber & Haber, LLP (Rachel Schulman, Esq. PLLC, Great Neck, NY, of counsel), forrespondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (C. Randall Hinrichs, J.), dated February 20, 2018. The order, after ahearing to determine the validity of service of process, granted the motion of the defendant DawnFlaim pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against her forlack of personal jurisdiction.
Ordered that the order is affirmed, with costs.
On April 1, 2008, the plaintiff commenced this action against the defendants to foreclose amortgage. According to an affidavit of service, a process server attempted to personally deliverthe summons and complaint to the defendant Dawn Flaim at her dwelling place in SuffolkCounty on Saturday, April 5, 2008, at 7:10 a.m., on Monday, April 7, 2008, at 8:35 p.m., and onTuesday, April 8, 2008, at 2:00 p.m. The affidavit recited that after these attempts provedunsuccessful, the process server affixed a copy of the summons and complaint to Flaim's door onthe last of these occasions, and thereafter mailed a copy to that same address (see CPLR308 [4]). The affidavit further indicated that the process server spoke to a male neighbor at aspecified address regarding, inter alia, Flaim's normal routine, her place of business, and herpossible military service.
In July 2008, Flaim moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against her for lack of personal jurisdiction, arguing that the process server did notexercise due diligence in attempting to serve her by personal delivery before resorting to "affixand mail" service pursuant to CPLR 308 (4). In support of her motion, Flaim submitted anaffirmation of her attorney, who was the male neighbor with whom the process server hadpurportedly spoken. The attorney affirmed that he was at his office in Garden City on Tuesday,April 8, 2008, at 2:00 p.m., supervising a will execution, and that he never spoke to the processserver at any point in time. On February 18, 2009, the Supreme Court held Flaim's motion inabeyance and set the matter down for a hearing to determine whether she was properly served.After the plaintiff failed to appear at the hearing, the matter languished for three years beforebeing removed from the court's calendar on June 7, 2012. On July 10, 2017, the court granted theplaintiff's request to restore the matter to the calendar for the hearing. After the hearing wasconducted, the court issued an order dated February 20, 2018, granting Flaim's motion to dismissthe complaint insofar as asserted against her. The plaintiff appeals.
"Service of process must be made in strict compliance with statutory 'methods for effectingpersonal service upon a natural person' pursuant to CPLR 308" (Estate of Waterman v Jones, 46 AD3d63, 65 [2007], quoting Macchia v Russo, 67 NY2d 592, 594 [1986]; see Emigrant Mtge. Co., Inc. vWestervelt, 105 AD3d 896, 896-897 [2013]; Gottesman v Friedman, 90 AD3d 608, 609 [2011]). At a hearing todetermine the validity of service of process, the burden of proving personal jurisdiction is uponthe party asserting it, and that party must sustain that burden by a preponderance of the credibleevidence (see Teitelbaum v NorthShore-Long Is. Jewish Health Sys., Inc., 160 AD3d 1009, 1011 [2018]; Gottesman vFriedman, 90 AD3d at 609). Moreover, the Supreme Court's determination as to thecredibility of the witnesses is entitled to great deference on appeal (see Santiago v Honcrat, 79 AD3d847, 848 [2010]; Freud v St. AgnesCathedral School, 64 AD3d 678, 679 [2009]).
We agree with the Supreme Court's conclusion that the plaintiff failed to meet its burden ofproving by a preponderance of the evidence that jurisdiction over Flaim was obtained by properservice of process pursuant to CPLR 308 (4). Flaim's neighbor, who since 1994 was the onlymale who had lived at the address specified in the affidavit of service, testified that he neverspoke to a process server between April 5 and April 8, 2008. The neighbor's office calendarsubstantiated portions of his testimony by establishing that he was not at his home on theafternoon of Tuesday, April 8, 2008, and thus could not have spoken with the process server inperson at his residence at that time. Similarly, Flaim testified that she was at home on themorning of Saturday, April 5, 2008, and on the evening of Monday, April 7, 2008, but no processserver came to her home. By contrast, the process server could not recall when he spoke toFlaim's male neighbor, and he no longer possessed the work ticket or books and records withrespect to the service.
Under the circumstances presented, we discern no basis upon which to disturb the SupremeCourt's credibility determinations or its conclusion that the plaintiff failed to establish, by apreponderance of the evidence, that its process server properly effected service upon Flaimpursuant to CPLR 308 (4) (seeCadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 628 [2014]; Deutsche Bank Natl. Trust Co. vPestano, 71 AD3d 1074, 1075 [2010]).
The plaintiff's remaining contention is without merit (see Wern v D'Alessandro, 219AD2d 646, 647 [1995]). Mastro, J.P., Rivera, Miller and Christopher, JJ., concur.