CitiMortgage, Inc. v. Pembelton

• Decision Date: 05 February 2013
• Citation: 39 Misc.3d 454,2013 N.Y. Slip Op. 23033,960 N.Y.S.2d 867
• Parties: CITIMORTGAGE, INC., Plaintiff, v. John H. PEMBELTON, III, et al., Defendant.
• Court: New York Supreme Court

39 Misc.3d 454

960 N.Y.S.2d 867

2013 N.Y. Slip Op. 23033

CITIMORTGAGE, INC., Plaintiff,

v.John H. PEMBELTON, III, et al., Defendant.

Supreme Court, Suffolk County, New York.

Feb. 5, 2013.

Knuckles & Komosinski, PC, for Citimortgage, Inc.

Rubin & Licatesi, for John H. Pembelton, III.

THOMAS F. WHELAN, J.

ORDERED that this motion (# 001) by defendant, John H. Pembelton III, to vacate his default in answering the summons and complaint, dismissal of this action or leave to serve and file a late answer is considered under CPLR 5015(a)(4); CPLR 5015(a)(1); CPLR 317 and CPLR 3012 and is denied.

The plaintiff commenced this action to foreclose an August 31, 2005 mortgage on real property given by the moving defendant, John H. Pembelton, III, to secure a mortgage note of the same date in the principal amount of $290,956.82. After defaulting in his obligations to pay the monthly mortgage installments under the terms of the August 31, 2005 loan documents, the plaintiff and defendant Pembelton entered into a mortgage modification agreement that was fully executed on February 5, 2010. Pembelton immediately defaulted in his payment obligations under this modification agreement by failing to tender the payment due on March 1, 2010. The plaintiff commenced this action on July 30, 2010 to foreclose the lien of the August 31, 2005 mortgage.

Following the filing of the summons and complaint, the plaintiff undertook to effect service upon the defendants in accordance with CPLR Article 3. According to the affidavit of the plaintiff's process server, Thomas Burke, on file in the office of the Clerk, moving defendant, John H. Pembelton, III, was served pursuant to CPLR 308(2) at the mortgaged premises on August 9, 2010 at 8:40 p.m. by delivery of the summons and complaint and a separate RPAPL § 1303 notice on blue paper to Kris Pembelton, who identified herself as the moving defendant's wife. Mr. Burke described her as a female being between the age of 31–39, 175–179 lbs., with black hair and black skin. Mr. Burke's affidavit included proof of the mailing of the summons, complaint and the RPAPL § 1303 notice on August 11, 2010. A second process server mailed copies of the these same documents to the moving defendant on August 11, 2010 in accordance with CPLR 3215(g)(3). The affidavit of service of this mailing by Andrelina Tineo was filed in the office of the Clerk on August 12, 2010.

“Kris” Pembelton was separately served as John Doe # 1 on August 9, 2010 with the summons and complaint by Thomas Burke by personal delivery thereof at the mortgaged premises at 8:40 p.m. The description of Ms. Pembelton set forth in Mr. Burke's affidavit of service by personal delivery to Ms. Pembelton is identical to that set forth in his affidavit of service upon the moving defendant, John H. Pembelton, III. According to the August 12, 2010 affidavit of Richard E. Harris, he mailed copies of a 1303 notice to Kris Pembelton as a defendant/tenant on August 12, 2010.

Neither of the Pembelton defendants timely appeared in this action by service of an answer. Nevertheless, it appears from the court's electronic filing system that there may have been some participation by the moving defendant in a self-represented capacity at settlement conferences of the type contemplated by CPLR 3408 that were conducted in the specialized mortgage foreclosure part of this court. The first of such conferences was a “screening” that was scheduled for September 28, 2010. The purpose of “screenings” is to aid the court in ascertaining whether mortgagors are interested in participating in the settlement conference process. If a mortgagor fails to appear or otherwise respond to the court's notice of a screening, the matter is marked compliant with CPLR 3404 and released from the conference part. Records maintained in this action by the specialized conference part indicate that the September 28, 2010 screening was adjourned as a result of a “pre-calendar request” to October 8, 2010. That conference was then adjourned to November 8, 2010, on which date, the defendant mortgagor failed to appear. The action was then “released” from the conferencepart and assigned to this IAS part. The record further reflects the moving defendant was listed in the court's electronic filing system as appearing in a “pro se” capacity until December 5, 2012, when his current counsel filed an amended notice of appearance upon the submission of the instant motion.

By the instant motion (# 001), the mortgagor defendant seeks to vacate his default and dismissal of this action on the grounds that the court lacks personal jurisdiction over him due to the fact that “he was never personally served with any notice of any kind in the present action” ( see ¶¶ 8–9 of the Affidavit of John H. Pembelton, III, sworn to before his attorney on November 19, 2012 attached to the moving papers). Continuing, Pembelton avers that while he resides at the mortgaged premises, he only found out about the pendency of this action “by going to the Suffolk County Clerk's office in or about August 2012” ( id. at ¶ 10). Pembelton next avers that “[i]n or about August 2012, after several unsuccessful attempts at modifying my existing mortgage, I was referred to counsel for the purpose of retaining a law firm to represent me concerning modification issues” ( id. at ¶ 11). Pembelton alleges that he followed his current attorney's advice and went to the Clerk's office in August of 2012 looking for informationwith respect to his house. “It was then that I learned of this pending foreclosure action” ( id. at ¶ 13). Pembelton goes on to deny service or his receipt of any papers in this action and also denies that his wife was served on his behalf, as she is forbidden to open the door to strangers when he is not home and he was not at home at 8:40 p.m. on August 9, 2012 ( id. at ¶¶ 14–28). Pembelton concludes his affidavit by challenging the description of his wife set forth in the affidavit of service of Thomas Burke due to the misspelling of her name and Burke's failure to note that she wears glasses ( id. at ¶¶ 29–30).

An affidavit by the moving defendant's wife, Christiana Maria Subero–Pendelton, is also attached to the moving papers. Like her husband, she admits that she resides at the mortgaged premises and she admits that she was home at the time of service. She does not contest the personal delivery of the summons and complaint that was effected upon her by Thomas Burke on August 9, 2010. Instead, she contests only that she was not served on behalf of her husband by parroting the factual averments allegedly supporting this claim that were advanced in her husband's affidavit. Ms. Pembelton adds certain additional facts regarding her personal traits and habits and household practices which she deems material to the jurisdictional issue.

In addition to a vacatur of his default and dismissal of this action on jurisdictional grounds or the scheduling of a traverse hearing on such grounds, defendant John H. Pembelton, III, moves, in effect, for an order vacating his default on the grounds of excusable default of the type encompassed by CPLR 50515(a)(1) and/or 317, a dismissal of the complaint or leave to serve a late answer pursuant to CPLR 3012(d). In support thereof, the moving defendant advances three defenses which he characterizes as meritorious enough to warrant dismissal of the complaint or the granting of leave to serve a late answer in the form of the proposed answer attached to his moving papers. The defendant's motion has been met with vigorous opposition by the plaintiff. Upon due consideration of the submissions of the parties, and for the reasons set forth below, the motion is denied in its entirety.

It is well established that a process server's sworn affidavit of service constitutes prima facie evidence of proper service( see ACT Prop., LLC v. Ana Garcia, 102 A.D.3d 712, 957 N.Y.S.2d 884 [2d Dept. 2013];Deutsche Bank Natl. Trust Co. v. Pietranico, 102 A.D.3d 724, 957 N.Y.S.2d 868 [2d Dept. 2013];Bank of N.Y. v. Espejo, 92 A.D.3d 707, 939 N.Y.S.2d 105 [2d Dept. 2012];Deutsche Bank Natl. Trust Co. v. Hussain, 78 A.D.3d 989, 912 N.Y.S.2d 595 [2d Dept. 2010];Wells Fargo Bank, NA v. McGloster, 48 A.D.3d 457, 849 N.Y.S.2d 784 [2d Dept. 2008] ). A defendant can rebut the process server's affidavit by a sworn denial of service in an affidavit containing specific and detailed contradictions of the allegations in the process server's affidavit ( see Bank of N.Y. v. Espejo, 92 A.D.3d 707, 939 N.Y.S.2d 105, supra;Bankers Trust Co. of California, NA v. Tsoukas, 303 A.D.2d 343, 756 N.Y.S.2d 92 [2d Dept. 2003] ). Bare conclusory and unsubstantiated denials of receipt of process are insufficient to rebut the presumption of proper service created by the affidavit of the plaintiff's process server and to require a traverse hearing ( see U.S. Bank Natl. Assn. v. Tate, 102 A.D.3d 859, 958 N.Y.S.2d 722 [2d Dept. 2013];Stevens v. Charles, 102 A.D.3d 763, 958 N.Y.S.2d 443 [2d Dept. 2013];Irwin Mtge. Corp. v. Devis, 72 A.D.3d 743, 898 N.Y.S.2d 854 [2d Dept. 2010];Beneficial Homeowner Serv. Corp. v. Girault, 60 A.D.3d 984, 875 N.Y.S.2d 815 [2d Dept. 2009] ).

A defendant who fails to swear to specific facts to rebut the statements in the process server's affidavits is not entitled to a hearing on the issue of service ( see Chichester v. Alal–Amin Grocery & Halal Meat, 100 A.D.3d 820, 954 N.Y.S.2d 577 [2d Dept. 2012];Bank of N.Y. v. Espejo, 92 A.D.3d 707, 939 N.Y.S.2d 105, supra;US Natl. Bank Assoc. v. Melton, 90 A.D.3d 742, 934 N.Y.S.2d 352 [2d Dept. 2011];Countrywide Home Loans Serv., LP v. Albert, 78 A.D.3d 983, 912 N.Y.S.2d 96 [2d Dept. 2010];Mortgage Elec. Sys. v. Schotter, 50 A.D.3d 983, 857 N.Y.S.2d 592 [2d Dept. 2008] ). Claimed discrepancies between the appearance of the person served and the description of such person set forth in the process server's affidavits that are unsubstantiated and of a minor, slight or...