Aurora Loan Servs., LLC v. Gaines

• Decision Date: 27 March 2013
• Citation: 2013 N.Y. Slip Op. 02034,104 A.D.3d 885,962 N.Y.S.2d 316
• Parties: AURORA LOAN SERVICES, LLC, appellant, v. Sonia GAINES, et al., defendants, Estate of Marjorie Colwell, respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 885

962 N.Y.S.2d 316

2013 N.Y. Slip Op. 02034

AURORA LOAN SERVICES, LLC, appellant,

v. Sonia GAINES, et al., defendants,Estate of Marjorie Colwell, respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 27, 2013.

Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino and Andrew Morganstern of counsel), for appellant.

Marcello de Peralta, PLLC, New York, N.Y. (Peter M. Spett of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action pursuant to RPAPL article 13 to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated June 10, 2010, which, upon granting that branch of the motion of the defendant Estate of Marjorie Colwell which was, in effect, for leave to intervene as of right, and after a hearing to determine the validity of service of process, granted that branch of that defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

Contrary to the plaintiff's contention, under the particular circumstances of this case, the Supreme Court correctly determined that the defendant Estate of Marjorie Colwell had standing to challenge the plaintiff's service of process upon its personal representative, the defendant Sonia Gaines ( see generally Grosso v. Estate of Gershenson, 33 A.D.3d 587, 822 N.Y.S.2d 150;Matter of Harris, 21 Misc.3d 239, 242, 862 N.Y.S.2d 898).

Furthermore, the Supreme Court properly directed a hearing to determine the validity of service of process upon Gaines. It is the plaintiff's burden to prove, by a preponderance of the evidence, that jurisdiction over the defendant was obtained via proper service of process ( see Gottesman v. Friedman, 90 A.D.3d 608, 609, 934 N.Y.S.2d 436;Washington Mut. Bank v. Holt, 71 A.D.3d 670, 897 N.Y.S.2d 148;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254;Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280;Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92;see also Khodeeva v. Chi Chung Yip, 84 A.D.3d 1030, 922 N.Y.S.2d 807). A process server's affidavit ordinarily constitutes a prima facie showing of proper service ( see U.S. Bank, N.A. v. Arias, 85 A.D.3d 1014, 1015, 927 N.Y.S.2d 362;Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d 824, 825, 921 N.Y.S.2d 127;Engel v. Boymelgreen, 80 A.D.3d 653, 654, 915 N.Y.S.2d 596;Washington Mut. Bank v. Holt, 71 A.D.3d at 670, 897 N.Y.S.2d 148;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d at 589, 884 N.Y.S.2d 254;Roberts v. Anka, 45 A.D.3d at 753, 846 N.Y.S.2d 280;Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d at 343–344, 756 N.Y.S.2d 92). Where the defendant submits a sworn denial which specifically refutes the process server's affidavit, the prima facie showing is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing ( see Gray v. Giannikios, 90 A.D.3d 836, 837, 935 N.Y.S.2d 112;U.S. Bank, N.A. v. Arias, 85 A.D.3d at 1015, 927 N.Y.S.2d 362;Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d at 825, 921 N.Y.S.2d 127;Engel v. Boymelgreen, 80 A.D.3d at 654, 915 N.Y.S.2d 596;City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643).

Where service is effected pursuant to CPLR 308(4), the so-called “nail and mail” method, the plaintiff must demonstrate that service pursuant to CPLR 308(1) or (2) (personal service or residence service) could not be made with “ ‘due diligence’ ” ( Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462, quoting CPLR 308[4]; see Gray v. Giannikios, 90 A.D.3d at 837, 935 N.Y.S.2d 112;McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759;Harkless v. Reid, 23 A.D.3d 622, 623, 806 N.Y.S.2d 214). This requirement must be “ ‘strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received’ ” ( McSorley v. Spear, 50 A.D.3d at 653, 854 N.Y.S.2d 759, quoting Gurevitch v. Goodman, 269 A.D.2d 355, 355, 702 N.Y.S.2d 634;see Estate of Waterman v. Jones, 46 A.D.3d at 66, 843 N.Y.S.2d 462;County of Nassau v. Letosky, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153).

Here, the plaintiff produced the process server's affidavit, which satisfied its prima facie burden regarding service. However, in her responsive affidavit, Gaines rebutted that showing by stating specifically that (1) she was never personally served in this action, (2) she had never resided at the address where the process server attempted personal service and eventually affixed the papers, and (3) the summons and complaint were never affixed to the door of the subject premises where she had lived for more than 20 years. This showing was sufficient to warrant a hearing ( see Gray v. Giannikios, 90 A.D.3d at 837, 935 N.Y.S.2d 112;U.S. Bank, N.A. v. Arias, 85 A.D.3d at 1015, 927 N.Y.S.2d 362;Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d at 825, 921 N.Y.S.2d 127;Engel v. Boymelgreen, 80 A.D.3d at 654, 915 N.Y.S.2d 596;City of New York v. Miller, 72 A.D.3d at 727, 898 N.Y.S.2d 643;Washington Mut. Bank v. Holt, 71 A.D.3d at 670–671, 897 N.Y.S.2d 148;Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d at 589, 884 N.Y.S.2d 254;Mortgage Access Corp. v. Webb, 11 A.D.3d 592, 593, 784 N.Y.S.2d 116;Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d at 344, 756 N.Y.S.2d 92).

At the hearing, the plaintiff failed to demonstrate that its process server made a genuine effort to determine Gaines's correct address or that he made “quality” efforts to serve her with process ( ...