AMK Capital Corp. v. Cifre Realty Corp.
| Docket Number | Index No. 32374/17E |
| Decision Date | 27 November 2023 |
| Citation | 2023 NY Slip Op 51291 (U) |
| Parties | AMK Capital Corp., AS AGENT, OF KAPCO INDUSTRIES, INC., Plaintiff(s), v. Cifre Realty Corp., AS MORTGAGOR; ADAM PLOTCH, AS RECORD OWNER BY REFEREE'S DEED RECORDED IN CRFN 2011000318280 UNDER CONDOMINIUM ASSOCIATION FORECLOSURE ACTION BRONX CO. INDEX No. 381425/09; BOARD OF MANAGERS OF THE PARKCHESTER NORTH CONDOMINIUM ASSOCIATION; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; NEW YORK CITY DEPARTMENT OF TAXATION AND FINANCE; DOMONIQUE MORRISON, Defendant(s). |
| Court | New York Supreme Court |
Unpublished Opinion
Counsel for Plotch: New York Litigation Group, PLLC
Counsel for MM and OGM: Herrick, Feinstein LLP
In this action to foreclose a mortgage and sell the real property which it encumbers, defendant ADAM PLOTCH (Plotch) moves for an order pursuant to CPLR § 5015(a)(4), inter alia, vacating the Court's judgment of foreclosure and sale dated November 26, 2018. Plotch contends, inter alia, that he was never properly served with the summons and complaint such that the Court never acquired personal jurisdiction over him. Defendants [1] MAGDY MIKHAIL (MM) and OLGA GARCIA-MIKHAIL (OGM) oppose the instant motion saliently asserting that Plotch has failed to sufficiently rebut the presumption of service established by the affidavit of service evincing service of the summons and complaint upon Plotch.
For the reasons that follow hereinafter, Plotch's motion is granted, in part.
According to the complaint, filed on June 23, 2017, this action is for foreclosure on a mortgage and the sale of the property which secures the corresponding promissory note. The complaint alleges that on May 12, 2005, defendant CIFRE REALTY CORP. (Cifre) executed a note wherein it agreed to repay a loan totaling $50,000 to plaintiff AMK CAPITAL CORP. (AMK). In order to secure the note Cifre executed a mortgage, wherein Cifre pledged the premises located at 1651 Metropolitan Avenue, Unit No.3C, Bronx, NY (3C), as security for the note. AMK assigned the note and mortgage to plaintiff Kapco Industries. On May 7, 2007, in connection with refinancing the note, Cifre executed a gap mortgage note, wherein Cifre agreed to repay a new loan totaling $75,000. In connection with the gap mortgage note, Cifre executed a gap mortgage wherein it pledged 3C as security for the gap mortgage note. On the same day, the parties executed a consolidation and extension agreement wherein the notes and mortgages were combined to evince a single loan totaling $125,000. On July 6, 2009, the Board of Managers of the Condominium Association (Board of Managers), a condominium board at 3C elected to foreclose a lien for unpaid common charges due from Cifre and totaling $5,253.20. On July 28, 2010, a final judgment of foreclosure and sale totaling $15,043.67 was entered in favor of the Board of Managers, which indicated that when 3C was sold, such sale would be subject to the mortgage given to plaintiff. On March 7, 2011, 3C was sold at auction to Plotch for $10,000. Plotch executed a memorandum of sale, which indicated that the sale to Plotch was subject to plaintiff's mortgage, converted to a lien by virtue of the sale, and totaled $125,000. On August 9, 2011, Plotch accepted title to 3C by referee's deed, which indicated that the sale to Plotch was subject to plaintiff's mortgage, converted to a lien by virtue of the sale, and totaling $125,000. On September 26, 2011, Plotch commenced an action seeking to quiet title to 3C thereby barring plaintiff from foreclosing on its mortgage lien. The foregoing action was dismissed. The mortgage to Cifre has matured, remains unpaid, Cifre has been dissolved by the New York State Secretary of State, and plaintiff holds and owns both the note and mortgage. Based on the foregoing, plaintiff interposes a cause of action seeking to foreclose on the mortgage and sell 3C.
On May 21, 2018, the Court (Thompson, J.) granted plaintiff's application seeking the entry of default judgment against all defendants since they had failed to appear and/or interpose answers. The Court also issued an order of reference.
On November 27, 2018, the Court (Gonzalez, J.) granted plaintiff's application seeking the entry of a judgment of foreclosure and sale, authorizing the sale of 3C.
On March 28, 2019, Sergio Marquez created and filed a report evincing that 3C was sold at auction to nonparty Jingli Qu (Qu) for $175,000.
On February 28, 2020, the Court (Gonzalez, J.) declined to sign Plotch's Order to Show Cause (OSC), seeking, inter alia, vacatur of the Court's judgment of foreclosure and sale on grounds that the Court lacked personal jurisdiction over him. The declination to sign the OSC was premised on the fact that counsel of record for Plotch had never been discharged or substituted [2].
On August 20, 2020, the Court (Gonzalez, J.), denied Plotch's pro se motion seeking relief identical to his prior OSC on grounds that the relief sought required an OSC.
On January 5, 2023, the Appellate Division, First Department, dismissed Plotch's appeal of the Court's decision dated August 20, 2020.
On May 16, 2023, the Court (Gonzalez, J.) denied Plotch's motion seeking reargument of the Court's decision dated August 20, 2020.
On June 5, 2023, the Court (Gonzalez, J.) again declined to sign Plotch's OSC, which was identical to his prior OSC.
CPLR § 5015(a)(4) authorizes a court to vacate a judgment when the same is obtained despite a "lack of jurisdiction to render the judgment or order" (CPLR § 5015[a][4]). The proponent of a motion to vacate a judgment for want of jurisdiction must establish either that the party to whom a judgment was granted failed to obtain personal jurisdiction over him or her (Toyota Motor Credit Corp. v Hardware Lam, 93 A.D.3d 713, 713 [2d Dept 2012]; Hossain v Fab Cab Corp., 57 A.D.3d 484, 485 [2d Dept 2008]), or that the court lacked the requisite subject matter jurisdiction to render judgment (Lacks v Lacks, 41 N.Y.2d 71, 77 [1976]; HSBC Bank USA, N.A. v Ashley, 104 A.D.3d 975, 976 [2d Dept 2013]).
It is well settled that the burden of establishing personal jurisdiction and proper service rests with the plaintiff (Frankel v Schilling, 149 A.D.2d 657, 659 [2d Dept 1989]; Torres v Corpus, 131 A.D.2d 463, 464 [2d Dept 1987]). Generally, an affidavit of service is prima facie evidence of proper service (Caba v Rai, 63 A.D.3d 578, 582-583 [1st Dept 2009]; NYCTL 1998-1 Trust Bank of NY v Rabinowitz, 7 A.D.3d 459, 460 [1st Dept 2004]; Scarano v Scarano, 63 A.D.3d 716, 716 [2d Dept 2009]; Simonds v Grobman, 277 A.D.2d 369, 370 [2d Dept 2000]). Accordingly, an affidavit evidencing proper service upon the defendant is sufficient to support a finding of personal jurisdiction (Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139 [2d Dept 1986]). Personal jurisdiction will be upheld without a traverse hearing if the only evidence submitted in opposition is a bare or conclusory denial of service (Caba at 583 [Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service as evinced by the affidavit of service.]; Simonds at 370 [ ]; Beneficial Homeowner Service Corp. v Girault, 60 A.D.3d 984, 984 [2d Dept 2009][The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308 (2), and the defendant's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service created by the affidavit of service" (internal citations omitted)]; Scarano at 716 [ ]; Rabinowitz at 460 []; Chemical Bank v Darnley, 300 A.D.2d 613, 613 [2d Dept 2002]), or a minor discrepancy, such as a mistake in the description of the recipient listed in the server's affidavit (Green Point Savings Bank v Clark, 253 A.D.2d 514, 515 [2d Dept 1998]). Stated differently, in order to successfully assail and rebut service so as to warrant a hearing, a defendant's affidavit must specifically rebut the facts in the affidavit of service (Caba at 683; Simonds at 370; Rabinowitz at 460). If the denial of service is factually specific, then the court must hold a traverse hearing before deciding whether it has personal jurisdiction over the defendant (Frankel v Schilling, 149 A.D.2d 657, 659 [2d Dept 1989]; Powell v Powell, 114 A.D.2d 443, 444 [2d Dept 1985]).
At a traverse hearing, plaintiff bears the burden of establishing service upon the defendant (Chaudry Const. Corp. v James G. Kalpakis & Assoc., 60 A.D.3d 544, 545 [1st Dept 2009]; Schorr v Persaud, 51 A.D.3d 519, 519-520 [1st Dept 2008]). Moreover, at the hearing, the trial court can resolve issues of credibility, such resolution is accorded great deference, and absent a determination that it is against the weight of the evidence, cannot be disturbed on appeal (McCray v Petrini, 212 A.D.2d 676, 676 [2d Dept 1995]; Avakian v De Los Santos, 183 A.D.2d 687, 688 [2d Dept 1992]).
It is well settled that a motion pursuant to CPLR § 5015(a)(4) may be made at anytime (Wells Fargo Bank N.A. v Podeswik, 115 A.D.3d 207, 214 [4th Dept 2014]; Augustin v Augustin, 79 A.D.3d 651, 652 [1st Dept 2010] Caba at 580; Lull v Van Tassell, 171 A.D.3d 1155, 1156 [2d Dept 2019...
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