Countrywide Home Loans, Inc. v. Smith

• Decision Date: 10 April 2019
• Docket Number: Index No. 14390/08,2016–09400
• Citation: 98 N.Y.S.3d 150,171 A.D.3d 858
• Parties: COUNTRYWIDE HOME LOANS, INC., Respondent, v. Kraig R. SMITH, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 858

98 N.Y.S.3d 150

COUNTRYWIDE HOME LOANS, INC., Respondent,

v.Kraig R. SMITH, Appellant, et al., Defendants.

2016–09400

Index No. 14390/08

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

Argued—December 13, 2018

April 10, 2019

Anthony C. Giordano, Garden City, NY, for appellant.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Christopher P. Kohn of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Kraig R. Smith appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated June 8, 2016. The order, insofar as appealed from, denied, without a hearing, that branch of that defendant's motion which was to vacate a judgment of foreclosure and sale entered July 22, 2009, upon his failure to appear or answer the complaint.

ORDERED that the order dated June 8, 2016, is affirmed insofar as appealed from, with costs.

The plaintiff commenced this mortgage foreclosure action against Kraig R. Smith (hereinafter the defendant), among others, in August 2008. Although the defendant allegedly was served with the summons and complaint pursuant to CPLR 308(4), he failed to appear or answer the complaint. The Supreme Court signed an order of reference on January 7, 2009. The plaintiff subsequently moved, inter alia, for a judgment of foreclosure and sale, which was granted without opposition. The judgment of foreclosure and sale was entered July 22, 2009, and a foreclosure sale was scheduled for January 26, 2016.

On or about January 25, 2016, the defendant moved by order to show cause, inter alia, pursuant to CPLR 5015 to vacate the judgment of foreclosure and sale. Among other things, the defendant argued that he was not properly served with the summons and complaint. In an order dated June 8, 2016, the Supreme Court, among other things, denied that branch of the defendant's motion without a hearing. The defendant appeals.

Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) or (2) cannot be made with "due diligence" ( CPLR 308[4] ; see HSBC Mtge. Corp. [USA] v. Hollender, 159 A.D.3d 883, 884, 74 N.Y.S.3d 93 ; LaSalle Bank N.A. v. Hudson, 139 A.D.3d 811, 812, 31 N.Y.S.3d 188 ). The term "due diligence" is not defined by statute, and is interpreted on a case-by-case basis ( Lasalle Bank N.A. v. Hudson, 139 A.D.3d at 812, 31 N.Y.S.3d 188 ; see Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462 ).

Here, contrary to the defendant's contention, the affidavit of service demonstrates that the process server exercised due diligence to attempt service pursuant to the methods set forth in 308(1) and (2), prior to resorting to service pursuant to CPLR 308(4). The process server's affidavit reflects that he visited the property where service was effectuated on different days of the week and at different times when the defendant could reasonably be expected to be home, including a weekend, spoke to a neighbor who confirmed that the defendant resided at the property, and used a database search which revealed that the property was also the defendant's place of business. Such efforts satisfied the due diligence requirements of CPLR 308(4) (see HSBC Mtge. Corp. [USA] v. Hollender, 159 A.D.3d at 884, 74 N.Y.S.3d 93 ; Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d 759, 760, 972 N.Y.S.2d 664 ; Singh v. Gold Coin Laundry Equip., 234 A.D.2d 358, 358, 651 N.Y.S.2d 103 ).

Additionally, contrary to the defendant's contention, the Supreme Court was not required to direct an evidentiary hearing on the issue of whether the defendant was properly served. The process server's affidavit of service constituted prima facie evidence of proper service upon the defendant (see HSBC Bank USA, N.A. v. Daniels, 163 A.D.3d 639, 640, 81 N.Y.S.3d 584 ; Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d at 760, 972 N.Y.S.2d 664 ). To be entitled to an evidentiary hearing on the issue of service, the defendant was required to rebut the plaintiff's prima facie showing by submitting a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit (see U.S. Bank, N.A. v. Peralta, 142 A.D.3d 988, 988–989, 37 N.Y.S.3d 308 ). A defendant's "bare and unsubstantiated denial of receipt" of service is insufficient to rebut the presumption of proper service, and does not necessitate a hearing ( Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d at 760, 972 N.Y.S.2d 664 ).

Here, the defendant's affidavit was insufficient to rebut the process server's affidavit. The defendant denied ever receiving any notices in this action by "mail or otherwise," and denied seeing "any documents left for [him]," but such denials of receipt of service in themselves are insufficient to warrant an evidentiary hearing (see id. ). The...