Bank of Am., N.A. v. Budhan

• Decision Date: 25 April 2019
• Docket Number: 9090,Index 380815/08
• Citation: 171 A.D.3d 622,99 N.Y.S.3d 264
• Parties: BANK OF AMERICA, N.A., Plaintiff–Respondent, v. Dhanraj BUDHAN, Defendant–Appellant, Citibank, N.A., as Trustee, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 622

99 N.Y.S.3d 264

BANK OF AMERICA, N.A., Plaintiff–Respondent,

v. Dhanraj BUDHAN, Defendant–Appellant,Citibank, N.A., as Trustee, et al., Defendants.

9090

Index 380815/08

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

ENTERED: APRIL 25, 2019

Anderson, Bowman & Zalewski, PLLC, Kew Gardens (Dustin Bowman of counsel), for appellant.

Aldridge Pite, LLP, Melville (Kenneth M. Sheehan of counsel), for respondent.

Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about May 11, 2018, which, after a traverse hearing, denied defendant's order to show cause, and vacated the stay on the execution of the judgment of foreclosure and sale, unanimously affirmed, without costs.

The affidavit of service was prima facie evidence of proper service, and defendant's conclusory denials were insufficient to rebut that presumption. Four attempts to serve defendant at the subject premises at diverse times, including early in the morning and later at night, were sufficient to establish due diligence under CPLR 308(4) (see Brown v. Teicher, 188 A.D.2d 256, 590 N.Y.S.2d 452 [1st Dept. 1992] ). Although the process server had no independent recollection of the service and did not bring his log book to the hearing, plaintiff's position rested on the process server's affidavit of service and defendant's testimony (see Korea Exch. Bank v. Yung Hyo Kim, 32 A.D.3d 690, 691, 822 N.Y.S.2d 7 [1st Dept. 2006] ). Here, the affidavit of service stated "confirmed with the neighbor," which was authenticated by the process server.

"There are no rigid standards governing the due diligence requirement for substituted service pursuant to CPLR 308(4)" ( Bank Leumi Trust Co. of N.Y. v. Katzen, 192 A.D.2d 401, 401, 596 N.Y.S.2d 368 [1st Dept. 1993] ). Plaintiff's process servicing company inquired as to defendant's actual residence, using, among other sources of information, a subscription only database known as the "IRB database" which showed that defendant was associated with four different addresses. The company also called the phone number of defendant's employer that was listed on the loan application and was advised that defendant no longer worked there. To the extent that the IRB results, listing defendant's addresses under the words "Address Summary/Probable Current Address," were not properly admitted as business records, service was nevertheless proper.

As Supreme Court noted, the deed listed defend...