Bank of N.Y. v. Segui
| Decision Date | 24 September 2014 |
| Citation | 2014 N.Y. Slip Op. 06288,993 N.Y.S.2d 330,120 A.D.3d 1369 |
| Court | New York Supreme Court — Appellate Division |
| Parties | BANK OF NEW YORK, etc., respondent, v. Margarita SEGUI, appellant, et al., defendants. |
Marisa Falero, Brooklyn, N.Y., for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), for respondent.
PETER B. SKELOS, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendant Margarita Segui appeals (1), as limited by her brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated January 24, 2012, as referred the matter to a Judicial Hearing Officer for a hearing to determine the validity of service of process, (2) from an order of the same court dated July 19, 2012, which granted the plaintiff's motion (a) to confirm the Judicial Hearing Officer's recommendation, in effect, that service was valid, and (b) to thereupon deny her motion to vacate her default in answering or appearing in the action on the ground that she failed to appear at the hearing to determine the validity of service of process, and denied her cross motion to vacate her default in appearing at that hearing, (3) from an order of the same court dated January 22, 2013, which denied her motion, denominated as one for leave to renew, but which was, in actuality, one for leave to reargue her cross motion to vacate her default in appearing at the hearing to determine the validity of service of process, and (4), as limited by her brief, from so much of an order of the same court dated March 22, 2013, as denied that branch of her prior motion which was to vacate the judgment of foreclosure and sale of the same court entered July 12, 2004, upon her failure to answer or appear.
ORDERED that one bill of costs is awarded to the appellant.
The appeal from so much of the order dated January 24, 2012, as referred the matter to a Judicial Hearing Officer (hereinafter JHO) for a hearing to determine the validity of service of process must be dismissed. The challenged portion of the order merely directs a judicial hearing to aid in the disposition of a motion and does not affect a substantial right. Therefore, it is not appealable as of right ( see CPLR 5701[a][2] [v]; Youngquist v. Youngquist, 44 A.D.3d 1034, 1035, 845 N.Y.S.2d 787; Leonard v. Bishop, 220 A.D.2d 723, 633 N.Y.S.2d 79; Board of Mgrs. of Oaks at La Tourette II v. Management Consultants Intl., 170 A.D.2d 636, 567 N.Y.S.2d 62), and leave to appeal has not been granted.
The appeal from the order dated January 22, 2013, must also be dismissed. The underlying motion, although denominated as one for leave to renew, was, in actuality, one for leave to reargue, the denial of which is not appealable ( see CPLR 2221[d][2]; [e][2]; Poulard v. Judkins, 102 A.D.3d 665, 956 N.Y.S.2d 916; Strunk v. Revenge Cab Corp., 98 A.D.3d 1030, 950 N.Y.S.2d 596).
This action was commenced in 2003 to foreclose a mortgage encumbering the residential Brooklyn property of the defendant Margarita Segui. It has an extensive litigation history that includes three prior appeals to this Court ( see Bank of N.Y. v. Segui, 91 A.D.3d 689, 937 N.Y.S.2d 95; Bank of N.Y. v. Segui, 68 A.D.3d 908, 890 N.Y.S.2d 830; Bank of N.Y. v. Segui, 42 A.D.3d 555, 840 N.Y.S.2d 408). Presently, Segui appeals, in whole or in part, from four separate orders of the Supreme Court that arise from her ongoing efforts to vacate a judgment of foreclosure and sale entered July 12, 2004, upon her failure to answer or appear ( see CPLR 5015[a] ). Throughout the course of the litigation, Segui has maintained, as she does on this appeal, that service of the pleadings was not valid.
On January 24, 2012, the Supreme Court referred the matter to a Judicial Hearing Officer (hereinafter JHO) for a hearing to determine the issue of whether Segui was properly served with the pleadings. At that time, the Supreme Court made several significant findings. The Supreme Court correctly found that, after several years of litigation, Segui had offered evidence sufficient to substantiate her claim that she was not properly served with the pleadings. In this regard, one of the several affidavits of service indicates that service of the pleadings was made upon Segui through her husband, “Hector Villafame,” by personal delivery at the subject premises, on December 23, 2003, at 4:45 p.m. The actual spelling of her husband's last name is “Villafane.” To rebut this affidavit of service, Segui offered an affidavit from her husband, in which he averred that he was at work, not at the premises, when the pleadings were allegedly served. To substantiate her husband's statement, Segui offered a time sheet from her husband's job at the New York City Department of Correction which showed that, on the date of the alleged substituted service, he signed in to work at 11:45 a.m. and signed out at 8:15 p.m. and, thus, he was not at the premises at the time he allegedly accepted the pleadings.
Additionally, the Supreme Court correctly found that Segui effectively raised doubts about other affidavits of service submitted by the process server. One of these affidavits states that, on December 23, 2003, service of the pleadings was made on Segui's cotenant “Hector Villafame” (sic). According to Segui, that name could refer either to Segui's husband (Hector Villafane, Jr.), or her father-in-law, Hector Villafane, Sr. Another affidavit states that, on the same date, personal service was made upon codefendant “Hector Villafame Sr.” Segui submitted evidence that although her father-in-law, Hector Villafane, Sr., had previously resided at the subject premises, he resided in Puerto Rico on the alleged date of service.
For those reasons, among others, the Supreme Court found that “equity would be best served” if it were to revisit that branch of Segui's prior motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered...
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