Deutsche Bank Nat'l Trust Co. v. Deserio
| Decision Date | 07 March 2016 |
| Docket Number | No. 62428/14.,62428/14. |
| Citation | 36 N.Y.S.3d 47 (Table) |
| Parties | DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee on behalf of the registered holders of GSAMP Trust 2004–AR1, Mortgage Pass–Through Certificates, Series 2004–AR1, Plaintiff, v. Gary DESERIO a/k/a Gary A. Deserio, People of the State of New York, Capital One Bank USA NA, Tammy Deserio, Clerk of the Suffolk County District Court, Defendants. |
| Court | New York Supreme Court |
Frenkel, Lambert, Weiss, Bay Shore, NY, for Plaintiff.
Rubin & Licatesi, PC, Garden City, NY, for Def. Gary Deserio.
Upon the following papers numbered 1 to 17 read on this motion by the plaintiff for an order confirming the report of the referee to compute and issuance of a judgment of foreclosure and sale and cross motion by defendant Deserio for dismissal of the plaintiff's complaint; Notice of Motion/Order to Show Cause and supporting papers 1–4; Notice of Cross Motion and supporting papers 5–8; Answering papers 9–11; 12–14; Reply papers 15–17; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 002) by the plaintiff for an order confirming the report of the referee of sale and for the issuance of a judgment of foreclosure and sale is considered under RPAPL Article 13 and is granted; and it is further
ORDERED that the cross-motion (# 003) by defendant, Gary Deserio, to dismiss the complaint or for leave to serve a late answer is considered under CPLR 3211(a)(8), 5015(a)(4) and 3012(d) and is denied.
The plaintiff commenced this action to foreclose the lien of a January 9, 2004 mortgage given to a predecessor-in-interest of the plaintiff by defendant Deserio to secure a mortgage note likewise given on that date in the principal amount of $194,700.00. The loan went into default in February of 2011 and the plaintiff commenced this action in April of 2014 to enforce its contractual remedy of foreclosure and sale. In response to the plaintiff's service of the summons and complaint upon him in May of 2014, defendant Deserio failed to appear herein by answer. The plaintiff then moved for an order of reference on default (# 001), which was granted by order of this court dated June 25, 2015. Therein, the default in answering of defendant Deserio and all others served with process was fixed and determined by the court.
By the instant motion (# 002) the plaintiff moves for an order confirming the report of the referee to compute and for the issuance of a judgment of foreclosure and sale. Defendant Deserio appears in opposition to such motion and separately moves by way of a cross motion (# 003) for an order dismissing the complaint on jurisdictional and other grounds. Alternatively, defendant Deserio seeks an order granting him leave to appear herein by service of a late answer. The plaintiff opposes the cross motion in papers that also serve as a reply to the opposing papers of defendant Deserio.
First considered is the cross motion (# 003) by defendant Deserio, as a determination thereof may render the plaintiff's motion academic. Where, as here, a claim for vacatur rests upon a jurisdictional defense, appellate case authorities have instructed trial courts to consider the efficacy of such defense prior to determining whether discretionary grounds for a vacatur of the default exist under CPLR 5015(a)(1) or CPLR 3012(d) (see Community West Bank, N.A. v. Stephen, 127 AD3d 1008, 9 NYS3d 275 [2d Dept 2015] ; E*Trade Bank v. Vasquez, 126 AD3d 933, 934, 7 NYS3d 285, 286 [2d Dept 2015] ; HSBC Bank USA Natl. Ass'n v. Miller, 121 AD3d 1044, 995 N.Y.S.2d 198 [2d Dept 2014] ; Youngstown Tube Co. v. Russo, 120 AD3d 1409, 993 N.Y.S.2d 146 [2d Dept 2014] ; Canelas v. Flores, 112 AD3d 871, 977 N.Y.S.2d 362 [2d Dept 2013] ).
The successful invocation of a jurisdictional defense is a complete defense to the complaint and where it is established the dismissal of an action against the moving defendant is warranted without any demonstration of his or her possession of a meritorious defense or other elemental showing (see Prudence v. Wright, 94 AD3d 1073, 943 N.Y.S.2d 185 [2d Dept 2012] ; see also Emigrant Mortg. Co., Inc. v. Westervelt, 105 AD3d 896, 964 N.Y.S.2d 543 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Pestano, 71 AD3d 1074, 899 N.Y.S.2d 269 [2d Dept 2010] ). Alternatively, a defendant who successfully establishes the defense of improper service may elect to waive the jurisdictional aspect of such defense and appear in the action so as to defend against the claims interposed in an effort to succeed on the merits and avoid a section commenced action by the plaintiff (see Equicredit Corp. of America v. Campbell, 73 AD3d 1119, 900 N.Y.S.2d 907 [2d Dept 2010] ; Ramirez v. Romualdo, 25 AD3d 680, 808 N.Y.S.2d 733 [2d Dept 2006] ; see also ACT Prop., LLC v. Garcia, 102 AD3d 712, 957 N.Y.S.2d 884 [2d Dept 2013] ; Dupps v. Betancourt, 99 AD3d 855, 952 N.Y.S.2d 585 [2d Dept 2012] ). To do so, however, such defendant must satisfy the two prong test applicable to the discretionary vacatur permitted under CPLR 5015(a)(1) and or CPLR 3012(d), both of which require a showing of a reasonable excuse for the default such as the improper service and the movant's possession of a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8 [1986] ; [2d Dept 2005]; Deutsche Bank Nat. Assoc. v. Kudlip, ––– AD3d ––––, 2016 WL 717958 [2d Dept 2016] ; U.S. Bank Nat. Assoc. v. Sachdev, 128 AD3d 807, 9 NYS3d 337 [2d Dept 2015] ; ACT Prop., LLC v. Garcia, 102 AD3d 712, supra; Equicredit Corp. of America v. Campbell, 73 AD3d 1119, supra ).
A “process server's affidavit of service constitutes prima facie evidence of proper service” (Scarano v. Scarano, 63 AD3d 716, 716, 880 N.Y.S.2d 682 [2d Dept 2009] ; see NYCTL 2009–A Trust v. Tsafatinos, 101 AD3d 1092, 1093, 956 N.Y.S.2d 571 [2d Dept 2012] ). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” (Countrywide Home Loans Serv., LP v. Albert, 78 AD3d at 984–985, 912 N.Y.S.2d 96 []; see Mortgage Elec. Registration Sys., Inc. v. Losco, 125 AD3d 733, 2015 WL 542795 [2d Dept 2015] ; JPMorgan Chase v. Todd, 125 AD3d 953, 2015 WL 775077 [2d Dept 2015]; Emigrant Mtge. Co., Inc. v. Westervelt, 105 AD3d 896, 897, 964 N.Y.S.2d 543 [2d Dept 2013] ; Countrywide Home Loans Serv., LP v. Albert, 78 AD3d 983, 984–985, supra ). Bare conclusory and unsubstantiated denials of receipt of process are thus 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 Beneficial Homeowner Serv. Corp. v. Girault, 60 AD3d 984, 875 N.Y.S.2d 815 [2d Dept 2009] ; Hamlet of Olde Oyster Bay Homeowners' Assoc. v. Ellner, 57 AD3d 732, 869 N.Y.S.2d 591 [2d Dept 2008] ; Mortgage Elec. Sys. v. Shotter, 50 AD3d 983, 857 N.Y.S.2d 592 [2d Dept 2008] ; 425 East 26th St. Owners' Corp. v. Beaton, 50 AD3d 845, 858 N.Y.S.2d 188 [2d Dept 2008] ; Jefferson v. Netusic, 44 AD3d 621, 843 N.Y.S.2d 158 [2d Dept 2007] ).
Here, the affidavits of service of the plaintiff's process server constituted prima facie evidence of proper service pursuant to CPLR 308(2) (see Onewest Bank v. Johnson, 127 AD3d 830, 4 NYS3d 889[2d Dept 2015] ; ACT Prop., LLC v. Garcia, 102 AD3d 712, supra; Bank of N.Y. v. Espejo, 92 AD3d 707, 708 [2d Dept 2012] ; U.S. Natl. Bank Assn. v. Melton, 90 AD3d 742, 743, 934 N.Y.S.2d 352 [2d Dept 2011] ). It was thus incumbent upon defendant Deserio to rebut this prima facie showing of due service by specific and substantiated allegations regarding a lack of such service (see Bank of N.Y. v. Espejo, 92 AD3d 707, supra ).
A review of the cross moving papers reveals that the same were insufficient to rebut the presumption of due service arising from the process server's affidavit of service upon defendant Deserio pursuant to CPLR 308(2). Such service was effected on April 26, 2014 at 1662 Lincoln Avenue, Bohemia, New York, which was the dwelling place and/or actual place of abode of defendant Deserio, as confirmed by Kimberly Lamantia, the person of suitable age and discretion to whom the summons, complaint and other initiatory papers were delivered. This service was effected after attempts to serve defendant Deserio at the mortgaged premises and at the address of his mother at 18 Amityville Street, Islip Terrace, New York were abandoned due to denials by the occupants at such premises that defendant Deserio resided there.
The allegations set forth in the supporting affidavit of defendant Deserio that he took up residence at the 18 Amityville Street residence after leaving the mortgaged premises when he separated from his wife in 2012 are conclusory and unsubstantiated and thus insufficient to warrant a hearing on the issue of service (see Chichester v. Alal–Amin Grocery & Halal Meat, 100 AD3d 820, 954 N.Y.S.2d 577 [2d Dept 2012] ; cf., Dime Sav. Bank of Williamsburg v. 146 Ross Realty, 106 AD3d 863, 966 N.Y.S.2d 443 [2d Dept 2013] ). The defendant's production of a driver's license as an attachment to his moving papers that was issued subsequent to the date on which the plaintiff effected service indicating his residence address as the address of his mother at the 18 Amityville Street residence in Islip Terrace, New York does not substantiate his claim that the address in Bohemia, at which service was effected, was not his dwelling place and/or usual place of abode at the time of service. The court declines to consider the defendant's reply papers submission of a motorcycle learner's permit issued in May of 2013 since that permit constitutes new matter to...
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