| Wilmington Trust Co. v Gewirtz |
| 2021 NY Slip Op 02562 [193 AD3d 1110] |
| April 28, 2021 |
| Appellate Division, Second Department |
[*1]
| Wilmington Trust Company, Appellant, v EdwardGewirtz, Also Known as Edward N. Gewirtz et al., Respondents, et al.,Defendants. |
Shapiro, DiCaro & Barak, LLC, Rochester, NY (Austin T. Shufelt of counsel), forappellant.
Bronstein, Gewirtz & Grossman, LLC, New York, NY (Edward N. Gewirtz respondentpro se of counsel), for respondents.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (Noach Dear, J.), dated September 7, 2017. The order, insofar as appealedfrom, after a hearing to determine the validity of service of process upon the defendants EdwardGewirtz, also known as Edward N. Gewirtz, and Amy Gewirtz, granted those defendants' motionpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lackof personal jurisdiction and, in effect, denied, as academic, the plaintiff's motion, inter alia, forsummary judgment on the complaint insofar as asserted against those defendants and for an orderof reference.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, themotion of the defendants Edward Gewirtz, also known a Edward N. Gewirtz, and Amy Gewirtzpursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them for lackof personal jurisdiction is denied, and the matter is remitted to the Supreme Court, Kings County,for a determination on the merits of the plaintiff's motion, inter alia, for summary judgment onthe complaint insofar as asserted against those defendants and for an order of reference inaccordance herewith.
In 2004, the defendant Edward Gewirtz executed a note in the sum of $280,000 which wassecured by a mortgage on residential property located in Brooklyn. In 2014, the plaintiffcommenced this action against Edward Gewirtz, also known as Edward N. Gewirtz, and thedefendant Amy Gewirtz (hereinafter together the defendants), among others, to foreclose themortgage, alleging a default in the monthly payment obligations due on the note beginning in2008.
After the defendants interposed an answer, they moved pursuant to CPLR 3211 (a) (8) todismiss the complaint insofar against them for lack of personal jurisdiction due to improperservice. The plaintiff moved, inter alia, for summary judgment on the complaint insofar asasserted against the defendants and for an order of reference. The defendants cross-moved tocompel discovery.
[*2] A hearing to determine thevalidity of service of process was held and, in an order dated September 7, 2017, the SupremeCourt granted the defendants' motion to dismiss. The court also, in effect, denied, as academic,the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as assertedagainst the defendants and the defendants' cross motion to compel discovery. The plaintiffappeals from so much of the order as granted the defendants' motion to dismiss, and, in effect,denied, as academic, its motion, inter alia, for summary judgment.
"At a hearing to determine the validity of service of process, the burden of proving personaljurisdiction is upon the party asserting it, and that party must sustain that burden by apreponderance of the credible evidence" (Grand Pac. Mtge. Corp. v Pietranski, 175 AD3d 1503, 1505[2019]). "Service pursuant to CPLR 308 (4) may be used only where personal service underCPLR 308 (1) and (2) cannot be made with due diligence" (Deutsche Bank Natl. Trust Co. v White, 110 AD3d 759, 759-760[2013]). The due diligence standard, while not defined by statute, has been interpreted andapplied on a case-by-case basis (seeEstate of Waterman v Jones, 46 AD3d 63, 66 [2007]). "The due diligence requirementmay be met with 'a few visits on different occasions and at different times to the defendant'sresidence or place of business when the defendant could reasonably be expected to be found atsuch location at those times' " (HSBC Mtge. Corp. [USA] v Hollender, 159 AD3d 883, 884[2018], quoting Estate of Waterman v Jones, 46 AD3d at 66).
Here, the process server's attempts to serve the defendants at their residence satisfied the"due diligence" requirement for service pursuant to CPLR 308 (4) (see County of Nassau v Gallagher, 43AD3d 972 [2007]; Johnson v Waters, 291 AD2d 481 [2002]). There were fourattempts to serve the defendants at their residence at times when they could reasonably have beenexpected to be found there, including attempts on a late weekday evening, an early weekdaymorning, a weekend evening, and a weekday afternoon (see JP Morgan Chase Bank, N.A. v Baldi, 128 AD3d 777 [2015]).As the plaintiff established by a preponderance of the credible evidence that personal jurisdictionwas acquired over the defendants, the Supreme Court should have denied the defendants' motionto dismiss the complaint insofar as asserted against them (see Wells Fargo Bank, N.A. v Cherot, 102 AD3d 768 [2013]) anddecided the plaintiff's motion, inter alia, for summary judgment on the merits instead of, in effect,denying it as academic.
Under the circumstances, we remit the matter to the Supreme Court, Kings County, for adetermination on the merits of the plaintiff's motion, inter alia, for summary judgment on thecomplaint insofar as asserted against the defendants and for an order of reference. In making thatdetermination, the court should consider whether that motion was premature.
The defendants' remaining contentions are either without merit or academic in light of ourdetermination. Dillon, J.P., Hinds-Radix, Duffy and Wooten, JJ., concur.