Bank United, FSB v. Verbitsky

• Decision Date: 19 December 2018
• Docket Number: 2016–12918,Index No. 12170/08
• Citation: 167 A.D.3d 835,91 N.Y.S.3d 145
• Parties: BANK UNITED, FSB, Respondent, v. Larisa VERBITSKY, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

167 A.D.3d 835

91 N.Y.S.3d 145

BANK UNITED, FSB, Respondent,

v.Larisa VERBITSKY, Appellant, et al., Defendants.

2016–12918

Index No. 12170/08

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

Argued—June 7, 2018

December 19, 2018

Stern & Stern, Brooklyn, N.Y. (Pamela Smith of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Thomas A. Hooker of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Larisa Verbitsky appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 23, 2016. The order denied that defendant's motion to dismiss the complaint insofar as asserted against her for failure to effect service of process upon her in compliance with a prior order of the same court (Sylvia G. Ash, J.) dated July 20, 2015, and granted the plaintiff's cross motion pursuant to CPLR 306–b for leave to extend, nunc pro tunc, its time to serve her with the summons and complaint until October 15, 2015.

ORDERED that the order dated September 23, 2016, is affirmed, with costs.

The factual history of this case is set forth in the companion appeal (see Bank United, FSB v. Verbitsky, 167 A.D.3d 833, 91 N.Y.S.3d 147, 2018 WL 6627083 [Appellate Division Docket No. 2015–10512 ; decided herewith] ). Insofar as relevant to this appeal, after service of process upon the defendant Larisa Verbitsky (hereinafter the defendant) was found to be defective, the Supreme Court, in an order dated July 20, 2015, directed the plaintiff to effectuate service of process upon the defendant within 60 days of the date of the order, i.e., September 18, 2015. A process server subsequently filed an affidavit of service attesting that, after attempting to effect personal service on the defendant at her residence, service upon the defendant was effectuated pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of her residence on September 17, 2015, and mailing a copy of those documents to her residence on September 22, 2015. Thereafter, the defendant moved to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction on the ground that process was not served within the time allowed in the order dated July 20, 2015, and, in any event, the due diligence requirement was not satisfied. The plaintiff cross-moved pursuant to CPLR 306–b for a second extension of time, nunc pro tunc, until October 15, 2015, to serve the defendant with the summons and complaint. The Supreme Court denied the defendant's motion and granted the plaintiff's cross motion, and the defendant appeals.

Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see HSBC Mtge. Corp. [USA] v. Hollender, 159 A.D.3d 883, 74 N.Y.S.3d 93 ). CPLR 308 requires that service be attempted by personal delivery of the summons "to the person to be served" ( CPLR 308[1] ), or by delivery "to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode" ( CPLR 308[2] ).

Service pursuant to CPLR 308(4), commonly known as affix and mail service, may be used only where service under CPLR 308(1) or (2) cannot be made with "due diligence" ( CPLR 308[4] ). Since CPLR 308(4) does not define "due diligence," it has been interpreted and applied on a case-by-case basis (see U.S. Bank, N.A. v. Cepeda, 155 A.D.3d 809, 810, 64 N.Y.S.3d 104 ; Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462 ).

Here, the process server's affidavit, which, inter alia, reflects that he made five attempts to effect personal service at the defendant's residence, at different times and on different days when the defendant could reasonably be expected to be home, constituted prima facie evidence of proper service pursuant to CPLR 308(4) (see Nationstar Mtge., LLC v. Dekom, 161 A.D.3d 995, 996–997, 78 N.Y.S.3d 148 ; HSBC Mtge. Corp. [USA] v. Hollender, 159 A.D.3d at 884, 74 N.Y.S.3d 93 ; ...