| U.S. Bank, N.A. v Tauber |
| 2020 NY Slip Op 04990 [186 AD3d 1451] |
| September 16, 2020 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, N.A., as Successor Trustee to Bank of America,N.A., as Successor to LaSalle Bank, N.A., as Trustee for the Holders of the Luminent MortgageTrust 2005-1, Respondent, v Roslyn Tauber, Appellant, et al.,Defendants. |
Menashe & Associates LLP, Montebello, NY (Chezki Menashe of counsel), forappellant.
Akerman LLP, New York, NY (Jordan M. Smith of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Roslyn Tauber appeals from an order ofthe Supreme Court, Rockland County (Linda Christopher, J.), dated May 23, 2017. The order,after a hearing to determine the validity of service of process, denied that defendant's motionpursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale of the same courtentered February 6, 2015, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar asasserted against her.
Ordered that the order is affirmed, with costs.
In this mortgage foreclosure action, the defendant Roslyn Tauber (hereinafter the defendant)moved pursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale enteredFebruary 6, 2015, and pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst her on the ground of lack of personal jurisdiction. In an order dated May 6, 2015, theSupreme Court denied the defendant's motion without a hearing. The defendant appealed.
In a decision and order dated June 29, 2016, this Court reversed the order dated May 6, 2015,and remitted the matter to the Supreme Court, Rockland County, for a hearing to determinewhether the defendant was properly served with process pursuant to CPLR 308 (2), and thereafterfor a new determination of her motion to vacate the judgment of foreclosure and sale and todismiss the complaint insofar as asserted against her (see U.S. Bank, N.A. v Tauber, 140 AD3d 1154 [2016]). After thehearing, in an order dated May 23, 2017, the Supreme Court found that the defendant wasproperly served pursuant to CPLR 308 (2) and denied her motion. The defendant appeals.
In reviewing a determination made by a hearing court, the "power of this Court is as broad asthat of the hearing court, and this Court may render its own determination as warranted by thefacts, taking into account that, in a close case, the hearing court had the advantage of seeing andhearing the witnesses" (Jhang v NassauUniv. Med. Ctr., 140 AD3d 1018, 1019 [2016]).
Here, we find no basis to disturb the Supreme Court's conclusions. We agree with the court'sdetermination that the address of the subject property was a proper address for service of processpursuant to CPLR 308 (2), despite the defendant's testimony that she never lived there. While, asa general matter, a defendant has no obligation to inform a party who may wish to sue of his orher whereabouts (see Feinstein v Bergner, 48 NY2d 234, 241-242 [1979]), "where adefendant willfully misrepresent[s] his [or her] address or violate[s] a statutory notificationrequirement, or where he [or she] engage[s] in conduct calculated to prevent the plaintiff fromlearning his [or her] actual place of residence, he [or she] may be estopped from asserting thedefense of defective service" (Bank of N.Y. v MacPherson, 301 AD2d 485, 486 [2003][citations and internal quotation marks omitted]).
Here, despite the defendant's testimony that she never lived in the subject property, theevidence adduced at the hearing reflects that the defendant repeatedly held herself out as aresident of the subject property throughout the pendency of this litigation, including inapplications for mortgage assistance through the federal government's "Making Home AffordableProgram" and in a power of attorney she executed for the purpose of permitting a family memberto participate on her behalf in court conferences pursuant to CPLR 3408 (a). Moreover, theevidence reflects that the defendant never gave the plaintiff the address of her purported trueplace of residence, despite having ample opportunity to do so. Under these circumstances, thedefendant is estopped from contending that the subject property was not her "dwelling place" orher "usual place of abode" (CPLR 308 [2]; see U.S. Bank Natl. Assn. v Vanvliet, 24 AD3d 906, 908 [2005];Bank of N.Y. v MacPherson, 301 AD2d at 486).
We also agree with the Supreme Court's determination that the defendant failed to establishthat service of process was made in violation of General Business Law § 13 (see generally JPMorgan Chase Bank, N.A.v Lilker, 153 AD3d 1243, 1245 [2017]). The record supports the court's conclusion thatthe defendant did not meet her burden of demonstrating malicious intent, as required for afinding that the plaintiff violated that statute (see General Business Law§ 13; Hudson City Sav.Bank, FSB v Schoenfeld, 172 AD3d 692, 693 [2019]; see also JPMorgan ChaseBank, N.A. v Lilker, 153 AD3d at 1245). Mastro, J.P., Maltese, Brathwaite Nelson andWooten, JJ., concur.