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

• Decision Date: 13 May 2014
• Citation: 985 N.Y.S.2d 532,117 A.D.3d 508,2014 N.Y. Slip Op. 03436
• Parties: BANK OF AMERICA, N.A., etc., Plaintiff–Respondent, v. Howard GRUFFERMAN, et al., Defendants–Appellants, New York City Transit Adjudication Bureau, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 508

985 N.Y.S.2d 532

2014 N.Y. Slip Op. 03436

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

v. Howard GRUFFERMAN, et al., Defendants–Appellants,New York City Transit Adjudication Bureau, et al., Defendants.

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

May 13, 2014.

Michael Medina and Donald B. Cohen, New York, for appellants.

Buchanan Ingersoll & Rooney PC, New York (Tanya D. Bosi of counsel), for respondent.

SWEENY, J.P., RENWICK, SAXE, FREEDMAN, RICHTER, JJ.

Judgment of Foreclosure and Sale, New York County (Eileen Rakower, J.), entered April 17, 2013, bringing up for review an order, same court and Justice, entered April 10, 2013, which, to the extent appealed from as limited by the briefs, following a traverse hearing, denied defendants-appellants' motion to dismiss the complaint for lack of jurisdiction, unanimously affirmed, with costs. Appeal from the above order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Service upon the doorman of defendants' apartment building was proper under CPLR 308(2), given that the process server was denied access to defendants' apartment ( see F.I. duPont, Glore Forgan & Co. v. Chen, 41 N.Y.2d 794, 797–798, 396 N.Y.S.2d 343, 364 N.E.2d 1115 [1977] ). The court credited the process server's testimony that the doorman denied access to defendants' apartment, and matters of credibility are best determined by the motion court ( see Matter of Corcoran [Ardra Ins. Co.], 176 A.D.2d 508, 508, 574 N.Y.S.2d 702 [1st Dept.1991] ).

*509 The motion court providently exercised its discretion to deny defendants' request to admit the doorman's logbook into evidence ( see Montes v. New York City Tr. Auth., 46 A.D.3d 121, 123, 843 N.Y.S.2d 622 [1st Dept.2007] ). In any event, even if the court erred, the error was harmless in light of the court's credibility determinations, which are supported by the record.