| Nationstar Mtge., LLC v Esdelle |
| 2020 NY Slip Op 04956 [186 AD3d 1384] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| Nationstar Mortgage, LLC, Respondent, v BeverlyEsdelle, Appellant, et al., Defendants. |
Berg & David, PLLC, Brooklyn, NY (David Berg, Megha Patel Kotecha, and AbrahamDavid of counsel), for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, NY (Charles Jeanfreau of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant Beverly Esdelle appeals from an orderand judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (NoachDear, J.), dated January 28, 2019. The order and judgment of foreclosure and sale, upon an orderof the same court dated September 26, 2017, inter alia, granting those branches of the plaintiff'smotion which were for leave to enter a default judgment against the defendant Beverly Esdelleand for an order of reference, and denying, without a hearing, that defendant's cross motionpursuant to CPLR 3211 (8) to dismiss the complaint insofar as asserted against her for lack ofpersonal jurisdiction, or alternatively, for leave to serve a late answer, upon an order of the samecourt, also dated September 26, 2017, among other things, appointing a referee to compute theamount due to the plaintiff, and upon an order of the same court dated January 28, 2019, interalia, granting the plaintiff's motion for a judgment of foreclosure and sale, among other things,directed the sale of the subject property.
Ordered that the order and judgment of foreclosure and sale is reversed, on the law, withcosts, the plaintiff's motion for a judgment of foreclosure and sale is denied, the order datedJanuary 28, 2019, is modified accordingly, so much of the first order dated September 26, 2017,as granted those branches of the plaintiff's motion which were for leave to enter a defaultjudgment against the defendant Beverly Esdelle and for an order of reference, and denied thatdefendant's cross motion pursuant to CPLR 3211 (8) to dismiss the complaint insofar as assertedagainst her for lack of personal jurisdiction, or alternatively, for leave to serve a late answer, andso much of the second order dated September 26, 2017, as granted those branches of theplaintiff's motion which were for leave to enter a default judgment against that defendant andappointed a referee to compute the amounts due to the plaintiff, are vacated, and the matter isremitted to the Supreme Court, Kings County, for a hearing to determine whether that defendantwas properly served with process, and, thereafter for a new determination of those branches ofthe plaintiff's motion which were for leave to enter a default judgment against that defendant andfor an order of reference, and of that defendant's cross motion pursuant to CPLR 3211 (8) todismiss the complaint insofar as asserted against her, or alternatively, for leave to serve a lateanswer.
In this action to foreclose a mortgage, the defendant Beverly Esdelle (hereinafter thedefendant) failed to appear or answer the complaint. Consequently, the plaintiff moved for,among other things, leave to enter a default judgment against the defendant and for an order ofreference. The defendant opposed the plaintiff's motion and cross-moved, inter alia, to dismissthe complaint insofar as asserted against her for lack of personal jurisdiction, or alternatively, forleave to serve a late answer. In an order dated September 26, 2017, the Supreme Court, amongother things, granted those branches of the plaintiff's motion, and denied, without a hearing, thedefendant's cross motion. In an order also dated September 26, 2017, the court, inter alia,appointed a referee to compute the amount due to the plaintiff. In an order dated January 28,2019, the court, among other things, granted the plaintiff's motion for a judgment of foreclosureand sale and an order and judgment of foreclosure and sale (one paper) was issued that same day.The defendant appeals from the order and judgment of foreclosure and sale.
The plaintiff demonstrated its entitlement to a default judgment against the defendant and anorder of reference by submitting proof of service of a copy of the summons and complaint, proofof the facts constituting the causes of action, including that the defendant defaulted on herpayment obligations, and proof that the defendant failed to appear or answer within the timeallowed (see RPAPL 1321 [1]; CPLR 3215 [f]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1185[2019]; Aurora Loan Servs., LLC vMovtady, 165 AD3d 1025, 1026 [2018]). Generally, " '[t]o successfully opposea facially adequate motion for leave to enter a default judgment and for an order of referencebased on the failure to appear or timely serve an answer, a defendant must demonstrate areasonable excuse for the delay and a potentially meritorious defense to the action' "(JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d at 1185, quoting Aurora LoanServs., LLC v Movtady, 165 AD3d at 1026-1027). However, where, as here, a defendantseeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), thecourt is required to resolve the jurisdictional question before determining whether it isappropriate to grant a discretionary vacatur of the default (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897[2013]).
A court lacks personal jurisdiction over a defendant when a plaintiff fails to properlyeffectuate service of process (see id. at 896-897; Krisilas v Mount Sinai Hosp., 63 AD3d 887, 889 [2009]). In thoseinstances in which process has not been served upon a defendant, all subsequent proceedings willbe rendered null and void (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897)."The burden of proving that personal jurisdiction has been acquired over a defendant in an actionrests with the plaintiff" (JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d at 1185)."Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service"(FV-1, Inc. v Reid, 138 AD3d922, 923 [2016]; see US Bank,N.A. v Schumacher, 172 AD3d 1137, 1137 [2019]). While a mere conclusory denial ofservice will not suffice to rebut a prima facie claim of proper service (see US Bank N.A. v Ramos, 153 AD3d882, 884 [2017]), "the sworn denial, combined with documentary and other evidencesupporting such claim, is sufficient to rebut the plaintiff's prima facie showing of proper serviceand to necessitate an evidentiary hearing" (U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155 [2016]).
Here, the process servers' affidavits of service established, prima facie, that the defendantwas served pursuant to CPLR 308 (2) on July 25, 2014, at her purported residence located onNew York Avenue in Brooklyn, as well as at the subject premises on July 12, 2014. However,the defendant successfully rebutted the process servers' affidavits through her specific avermentsthat, at the time of each purported service, neither the New York Avenue address, nor the subjectpremises, was her residence, actual dwelling place, or usual place of abode (see US Bank,N.A. v Schumacher, 172 AD3d at 1138; U.S. Bank, N.A. v Tauber, 140 AD3d at1155). Rather, the defendant averred that at the time of each purported service, she resided at anaddress on Albany Avenue in Brooklyn. The defendant annexed to her affidavit her lease for theAlbany Avenue premises covering the period from January 25, 2014, through January 31, 2015,money orders made payable to the Albany Avenue landlord within the lease period, thedefendant's 2015 W-2 bearing the Albany Avenue address, utility bills during the lease periodbearing the Albany Avenue address, and bank statements during the lease period bearing theAlbany Avenue address. These records, in conjunction with the defendant's sworn statements, areevidence that the defendant did not reside at the locations where process was served, and weresufficient to warrant a hearing (see US Bank, N.A. v Schumacher, 172 AD3d at 1138;U.S. Bank, N.A. v Tauber, 140 AD3d at 1154). The plaintiff's submissions in oppositionfailed to establish that service was proper.
Consequently, the Supreme Court should have conducted a hearing in order to resolve thedefendant's jurisdictional objection before granting the plaintiff's motion, inter alia, for leave toenter a default judgment, and before denying the defendant's cross motion pursuant to CPLR3211 (8) to dismiss the complaint, or alternatively, for leave to serve a late answer (see USBank, N.A. v Schumacher, 172 AD3d at 1138; U.S. Bank, N.A. v Tauber, 140 AD3dat 1154).
Under the circumstances of this case, the Supreme Court should not have determined that thedefendant is estopped from challenging service because she failed to update her new address withthe Department of Motor Vehicles (see Vehicle and Traffic Law § 505 [5];Itshaik v Singh, 165 AD3d 902,903-904 [2018]). Here, there is no evidence that the defendant affirmatively misrepresented heraddress so that the plaintiff would rely upon the misrepresentation to effectuate service (cf. Mighty v Deshommes, 178 AD3d912, 915 [2019]; Kalamadeen vSingh, 63 AD3d 1007, 1009 [2009]), nor is there any evidence that the plaintiff servedthe defendant at the New York Avenue address in reliance upon the defendant's address asreported to the Department of Motor Vehicles (see Itshaik v Singh, 165 AD3d at903-904).
Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing todetermine whether personal jurisdiction over the defendant was obtained, and thereafter a newdetermination of those branches of the plaintiff's motion which were for leave to enter a defaultjudgment against the defendant and for an order of reference, and of the defendant's cross motionpursuant to CPLR 3211 (8) to dismiss the complaint insofar as asserted against her, oralternatively, for leave to serve a late answer. Dillon, J.P., Hinds-Radix, Barros and BrathwaiteNelson, JJ., concur.