Deutsche Bank Nat'l Trust Co. v. Jorgensen

• Decision Date: 15 July 2020
• Docket Number: Index No. 2149/08,2017–04593,2017–09083
• Citation: 125 N.Y.S.3d 570 (Mem),185 A.D.3d 784
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Eleanor JORGENSEN, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 784

125 N.Y.S.3d 570 (Mem)

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant,

v.Eleanor JORGENSEN, Respondent, et al., Defendants.

2017–04593

2017–09083

Index No. 2149/08

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

Submitted—December 3, 2019

July 15, 2020

Leopold & Associates, PLLC (Blank Rome LLP, New York, N.Y. [Jonathan M. Robbin and Jacquelyn A. DiCicco ], of counsel), for appellant.

Angelo A. DiGangi, Richmond Hill, NY, for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered June 10, 2015, and (2) an order of the same court entered June 26, 2017. The order entered June 10, 2015, insofar as appealed from, after a hearing to determine the validity of service of process, granted the cross motion of the defendant Eleanor Jorgensen pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her, and denied, in effect, as academic, the plaintiff's motion, inter alia, for summary judgment on the complaint. The order entered June 26, 2017, insofar as appealed from, denied those branches of the plaintiff's motion which were for leave to reargue its opposition to that defendant's cross motion or, in the alternative, pursuant to CPLR 306–b to extend the time of service.

ORDERED that the appeal from so much of the order entered June 26, 2017, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered June 10, 2015, is reversed insofar as appealed from, on the law, the cross motion of the defendant Eleanor Jorgensen pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her is denied, and the matter is remitted to the Supreme Court, Queens County, for a determination on the merits of the plaintiff's motion, inter alia, for summary judgment on the complaint; and it is further,

ORDERED that the order entered June 26, 2017, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On August 21, 2008, the plaintiff commenced this action to foreclose a mortgage executed by the defendant Eleanor Jorgensen (hereinafter the defendant). The defendant joined issue, raising, inter alia, an affirmative defense of lack of personal jurisdiction due to improper service of the summons and complaint.

In August 2010, the plaintiff moved, inter alia, for summary judgment on the complaint, and the defendant cross-moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The plaintiff opposed the cross motion, inter alia, on the ground that it was untimely pursuant to CPLR 3211(e). By order dated October 18, 2010 (hereinafter the 2010 order), the Supreme Court directed a hearing to determine the validity of service of process and held the determination of the motion and cross motion in abeyance pending the outcome of the hearing. On June 10, 2015, following the hearing, the court entered an order, inter alia, granting the defendant's cross motion and, in effect, denying the plaintiff's motion as academic. The plaintiff appeals from those portions of the order, and from so much of an order entered June 26, 2017, as denied those branches of its motion which were for leave to reargue its opposition to the cross motion or, in the alternative, pursuant to CPLR 306–b to extend the time of service.

Pursuant to CPLR 3211(e), the defendant was required to move to dismiss the complaint for lack of proper service within 60 days following the service of her answer, in September 2008, unless an extension of time was warranted on the ground of undue hardship. Since the defendant did not move for that...