| Bank of Am., N.A. v Genzler |
| 2020 NY Slip Op 06235 [188 AD3d 634] |
| November 4, 2020 |
| Appellate Division, Second Department |
[*1]
| Bank of America, N.A., Appellant, v Shmuel Genzler,Respondent, et al., Defendants. |
McCalla Raymer Leibert Pierce, LLC, New York, NY (Margaret S. Stefandl of counsel), forappellant.
Jeremy Rosenberg, Chestnut Ridge, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Noach Dear, J.), dated May 24, 2017. The order, upon the report of a courtattorney referee (Richard Allman, Ct. Atty. Ref.) dated May 10, 2017, made after a hearing todetermine the validity of service of process on the defendant Shmuel Genzler, granted thatdefendant's motion to vacate an order of reference of the same court dated July 16, 2013, and todismiss the complaint insofar as asserted against him for lack of personal jurisdiction, anddenied, as academic, the plaintiff's motion for a judgment of foreclosure and sale.
Ordered that the order dated May 24, 2017, is affirmed, with costs.
In December 2008, the plaintiff commenced this action to foreclose a mortgage given by thedefendant Shmuel Genzler (hereinafter the defendant) encumbering certain property located inBrooklyn. According to an affidavit of service, the plaintiff's process server purportedly servedthe defendant pursuant to CPLR 308 (2) by delivering a copy of the summons and complaint to aperson of suitable age and discretion at a property owned by the defendant which was located at1331 47th Street in Brooklyn (hereinafter the 47th Street property). The defendant did not answeror appear in the action.
The plaintiff subsequently moved for and obtained an order of reference, dated July 16, 2013.Thereafter, the plaintiff moved for a judgment of foreclosure and sale and the defendant movedto vacate the order of reference and to dismiss the complaint insofar as asserted against him forlack of personal jurisdiction. The matter was referred to a court attorney referee (hereinafter thereferee) for a hearing to determine the validity of service of process upon the defendant. At thehearing, the plaintiff relied on the affidavit of service, which identified the 47th Street property asthe defendant's "dwelling place," and the testimony of the process server, who had noindependent recollection of the service effectuated upon the defendant. The defendant and hiswitness, the tenant who had lived at the 47th Street property since 1995, testified, inter alia, thatthe defendant had never resided at the 47th Street property. After the hearing, in an order datedMay 10, 2017, the referee determined, inter alia, that the defendant was not served at his actualdwelling place. Thereafter, by order dated May 24, 2017, the Supreme Court granted thedefendant's motion to vacate the order of reference and to dismiss the complaint insofar asasserted against him, and denied, as academic, the plaintiff's motion for a judgment offoreclosure and sale. The plaintiff appeals.
"Service of process upon a natural person must be made in strict compliance with thestatutory methods of service set forth in CPLR 308" (Indymac Fed. Bank, FSB v Jones, 173 AD3d 702, 703 [2019]; see Estate of Waterman v Jones, 46AD3d 63, 65 [2007]). CPLR 308 (2) provides, in pertinent part, that personal service upon anatural person may be made "by delivering the summons within the state to a person of suitableage and discretion at the actual place of business, dwelling place or usual place of abode of theperson to be served and by . . . mailing the summons to the person to be served athis or her last known [address]." "Personal jurisdiction is not acquired pursuant to CPLR 308 (2)unless both the delivery and mailing requirements have been complied with" (Wells Fargo Bank, N.A. v Heaven, 176AD3d 761, 762 [2019]). "At a hearing to determine the validity of service of process, theburden of proving personal jurisdiction is upon the party asserting it, and that party must sustainthat burden by a preponderance of the credible evidence" (Grand Pac. Mtge. Corp. v Pietranski, 175 AD3d 1503, 1505 [2019];see Wells Fargo Bank, NA vBurshstein, 172 AD3d 1436, 1436 [2019]). "In reviewing a determination made after ahearing, this Court's authority is as broad as that of the hearing court, and this Court may renderthe determination it finds warranted by the facts, taking into account that in a close case, thehearing court had the advantage of seeing the witnesses" (Indymac Fed. Bank, FSB vJones, 173 AD3d at 703 [internal quotation marks omitted]; see Wells Fargo Bank, NA vBurshstein, 172 AD3d at 1436).
Under the circumstances presented, and considering that the referee had the advantage ofseeing and hearing the witnesses, we discern no basis upon which to disturb the referee'scredibility determination crediting the testimony of the defendant and his witness that thedefendant never resided at the address where service purportedly was effectuated upon him (see Cadlerock Joint Venture, L.P. vKierstedt, 119 AD3d 627, 628 [2014]).
The plaintiff's remaining contentions either need not be reached in light of our determination,are without merit, or are not properly before this Court.
Accordingly, we agree with the Supreme Court's determination granting the defendant'smotion to vacate the order of reference and to dismiss the complaint insofar as asserted againsthim, and denying, as academic, the plaintiff's motion for a judgment of foreclosure and sale.Dillon, J.P., Maltese, Barros and Connolly, JJ., concur.