DLJ Mortg. Capital, Inc. v. Christie

• Citation: 202 A.D.3d 913,162 N.Y.S.3d 464
• Decision Date: 16 February 2022
• Docket Number: 2019–03757,Index No. 2750/13
• Parties: DLJ MORTGAGE CAPITAL, INC., respondent, v. Alex T. CHRISTIE, et al., appellants, et al., defendants.
• Court: New York Supreme Court Appellate Division

202 A.D.3d 913

162 N.Y.S.3d 464

DLJ MORTGAGE CAPITAL, INC., respondent,

v.Alex T. CHRISTIE, et al., appellants, et al., defendants.

2019–03757

Index No. 2750/13

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

Argued—February 9, 2021

February 16, 2022

Zimmerman Law, P.C., Huntington Station, NY (Naomi Trainer and Michael Zimmerman of counsel), for appellants.

Hinshaw & Culbertson LLP, New York, NY (Brian S. McGrath of counsel), for respondent.

HECTOR D. LASALLE, P.J., MARK C. DILLON, BETSY BARROS, CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Alex T. Christie and Adam Calderon appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered January 28, 2019. The order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court entered October 30, 2017, granting the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve and file proof of service upon the defendants Alex T. Christie and Adam Calderon, and denying the cross motion of those defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and upon an order of the same court entered January 28, 2019, inter alia, granting that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, and denying those branches of the cross motion of the defendants Alex T. Christie and Adam Calderon which were pursuant to CPLR 5015(a)(2) and (3) to vacate the order entered October 30, 2017, and pursuant to CPLR 5015(a)(4) to vacate an order of the same court entered December 21, 2017, inter alia, granting those branches of the plaintiff's motion which were for leave to enter a default judgment and for an order of reference, granted that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, denied those branches of the cross motion of the defendants Alex T. Christie and Adam Calderon which were pursuant to CPLR 5015(a)(2) and (3) to vacate the order entered October 30, 2017, and pursuant to CPLR 5015(a)(4) to vacate the order entered December 21, 2017, and directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is modified, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof denying that branch of the cross motion of the defendants Alex T. Christie and Adam Calderon which was pursuant to CPLR 5015(a)(4) to vacate the order entered December 21, 2017, and substituting therefor a provision granting that branch of the cross motion, and (3) by deleting the provision thereof directing the sale of the subject property; as so modified, the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs to the defendants Alex T. Christie and Adam Calderon, and the order entered January 28, 2019, is modified accordingly.

On June 16, 2006, the defendant Alex T. Christie executed a note in the sum of $640,000 in favor of HTFC Corporation (hereinafter HTFC). The note was secured by a mortgage on residential property located in Massapequa. On June 17, 2006, Christie executed a quitclaim deed transferring the property to the defendant Adam Calderon. Christie allegedly defaulted on his obligations under the note and mortgage by failing to make the payments due on August 1, 2006, and thereafter.

On March 6, 2013, the plaintiff, as successor in interest to HTFC, commenced this action against Christie and Calderon (hereinafter together the defendants), among others, to foreclose the mortgage. Thereafter, the plaintiff filed affidavits of service indicating that the defendants were served with process at the subject property on March 18, 2013. The defendants did not appear or answer the complaint.

In July 2016, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The defendants cross-moved, inter alia, pursuant to CPLR 3211(a)(5) and (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and as time-barred. In an order dated October 3, 2016, the Supreme Court directed a hearing to determine whether the defendants were properly served with process and held the plaintiff's motion and the defendants’ cross motion in abeyance pending the outcome of the hearing. After the hearing, which was held on March 1, 2017, the court found that service on the defendants was not properly effectuated. However, the court did not at that time resolve the plaintiff's motion and the defendants’ cross motion, which were left pending and undecided. Nor did the court enter an order directing dismissal of the complaint insofar as asserted against the defendants for lack of personal jurisdiction.

More than one month after the conclusion of the hearing to determine the validity of service of process, the plaintiff filed new affidavits of service indicating that Calderon was served with process on April 3, 2017, pursuant to CPLR 308(2) and that Christie was served with process on April 15, 2017, pursuant to CPLR 308(4). Two months later, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve and file proof of service of the summons and complaint upon the defendants "nunc pro tunc," claiming that the defendants had been properly served in April 2017 and that their time to respond to the complaint pursuant to CPLR 3012(a) had now expired. The defendants opposed the motion and cross-moved pursuant to CPLR 3211(a)(5) and (8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction and as time-barred.

In an order entered October 30, 2017, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. Upon the denial of the defendants’ cross motion, CPLR 3211(f) permitted an answer within 10 days from the service of notice of entry of the order. That being the case, and contrary to the concurrence of our colleague, there was no need for the court to provide the defendants with guidance as to when they were required to serve a responsive pleading, as CPLR 3211(f) already statutorily did so. Further, since the defendants were statutorily entitled to 10 days for a responsive pleading measured from the service of the notice of entry, they were never in danger of being in default nunc pro tunc, as a matter of law. Subsequently, in an order entered December 21, 2017, the court, inter alia, granted the plaintiff's July 2016 motion, among other things, for leave to enter a default judgment and for an order of reference, which had been held in abeyance until then.

On May 10, 2018, the defendants served an answer, and on June 15, 2018, the plaintiff served a notice of rejection of the answer.

In August 2018, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. The defendants cross-moved, inter alia, pursuant to CPLR 5015(a)(2) and (3) to vacate the order entered October 30, 2017, and pursuant to CPLR 5015(a)(4) to vacate the order entered December 21, 2017. In an order entered January 28, 2019, the Supreme Court granted the plaintiff's motion and denied the defendants’ cross motion. On the same day, the court entered an order and judgment of foreclosure and sale granting the plaintiff's motion, denying the defendants’ cross motion, and directing the sale of the subject property. The defendants appeal.

Contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve and file proof of service of the summons and complaint upon the defendants (see Chandler v. Osadln, Inc., 181 A.D.3d 897, 899, 122 N.Y.S.3d 337 ). Nevertheless, under the highly unusual circumstances presented, the order entered December 21, 2017, was without effect and must be vacated (see Discover Bank v. Eschwege, 71 A.D.3d 1413, 1414, 897 N.Y.S.2d 333 ; Rosato v. Ricciardi, 174 A.D.2d 937, 938, 571 N.Y.S.2d 633 ). That order was predicated on a motion that was left pending and undecided, and was filed in July 2016, at a time when the court lacked personal jurisdiction over the defendants. Thus, since that motion was filed at a time when the defendants had not defaulted in the action, the court's determination to grant the plaintiff's motion, inter alia, for leave to enter a default judgment and for an order of reference, without regard to the re-service of process, and despite the fact that the court had found after a hearing that the original service of process was defective, was improper. Moreover, so much of the order and judgment of foreclosure and sale as granted that branch of the plaintiff's motion which was for a judgment of foreclosure and sale and directed the sale of the subject property must be reversed, as those portions of the order and judgment of foreclosure and sale were based on the order entered December 21, 2017 (see Discover Bank v. Eschwege, 71 A.D.3d at 1414, 897 N.Y.S.2d 333 ; Rosato v. Ricciardi, 174 A.D.2d at 938, 571 N.Y.S.2d 633 ).

The defendants’ remaining contentions are without merit.

LASALLE, P.J., DILLON and CHAMBERS, JJ., concur.

HINDS–RADIX, J., concurs in part and dissents in part, and votes to modify the order and judgment of foreclosure and sale, on the law, (1) by deleting the provision thereof granting that branch of the plaintiff's motion which was for a judgment of foreclosure and sale, and substituting therefor a provision denying that branch of the motion, (2) by deleting the provision thereof denying that branch of the cross motion of the defendants Alex T. Christie and Adam Calderon which was pursuant to CPLR 5015(a)(4) to vacate the order entered December 21, 2017,...