Bank v. Emmanuel

• Decision Date: 26 April 2011
• Citation: Bank v. Emmanuel, 83 A.D.3d 1047, 921 N.Y.S.2d 320, 2011 N.Y. Slip Op. 3586 (N.Y. App. Div. 2011)
• Parties: U.S. BANK, National Association, etc., appellant,v.Arriana EMMANUEL, etc., et al., defendants.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1047

921 N.Y.S.2d 320

2011 N.Y. Slip Op. 03586

U.S. BANK, National Association, etc., appellant,

v.Arriana EMMANUEL, etc., et al., defendants.

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

April 26, 2011.

Hogan Lovells U.S., LLP, New York, N.Y. (David Dunn, Allison J. Schoenthal, Renee Garcia, and Tracy L. Hresko of counsel), for appellant.MARK C. DILLON, J.P., ANITA R. FLORIO, RUTH C. BALKIN, and RANDALL T. ENG, JJ.

In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated May 11, 2010, as denied its ex parte motion pursuant to CPLR 314 and 315, inter alia, to direct service upon the defendant Arriana Emmanuel by publication and, sua sponte, directed the dismissal of the complaint with prejudice and cancelled the notice of pendency.

ORDERED that on the Court's own motion, the appeal from so much of the order as denied the plaintiff's ex parte motion is deemed an application pursuant to CPLR 5704(a) to vacate so much of the order as denied the ex parte motion; and it is further,

ORDERED that on the Court's own motion, the appeal from so much of the order as, sua sponte, dismissed the complaint with prejudice is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted ( see CPLR 5701[c] ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, without costs or disbursements; and it is further,

ORDERED that the application pursuant to CPLR 5704(a) is granted, without costs or disbursements, and the ex parte motion pursuant to CPLR 314 and 315 is granted.

The defendant Arriana Emmanuel (hereinafter the defendant) defaulted on her mortgage loan. On July 30, 2009, the plaintiff, allegedly the holder of the mortgage and note, commenced this action to foreclose the mortgage. In January 2010 the plaintiff moved ex parte pursuant to CPLR 314 and 315 to direct service upon the defendant by publication and for certain other related relief. The Supreme Court denied the motion without considering its merits and, sua sponte, directed the dismissal of the complaint with prejudice and cancelled the notice of pendency, concluding that the plaintiff lacked standing to commence the action. We reverse the order insofar as appealed from.

The proof submitted by the plaintiff in support of its motion demonstrated that service could not be made upon the defendant by another prescribed method with due diligence ( see CPLR 315) and that she was evading service. Under these circumstances, the Supreme Court should have granted the ex parte motion, inter alia, for service by publication ( see Dime Sav. Bank of N.Y. v. Mancini, 184 A.D.2d 989, 990, 585 N.Y.S.2d 603; cf. Contimortgage Corp. v. Isler, 48 A.D.3d 732, 734–735, 853 N.Y.S.2d 162; State St. Bank & Trust Co. v. Coakley, 16 A.D.3d 403, 790 N.Y.S.2d 412; OCI Mtge. Corp. v. Murphy, 258 A.D.2d 633, 685 N.Y.S.2d 776).

The Supreme Court...