HSBC Bank United States v. Hamilton

• Decision Date: 02 April 2014
• Parties: HSBC BANK USA, NATIONAL ASSOCIATION, respondent, v. Patricia HAMILTON, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 663
983 N.Y.S.2d 585
2014 N.Y. Slip Op. 02261

HSBC BANK USA, NATIONAL ASSOCIATION, respondent,
v.
Patricia HAMILTON, appellant, et al., defendants.

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

April 2, 2014.

Rubin & Licatesi, P.C., Garden City, N.Y. (Amy J. Zamir of counsel), for appellant.

Sheldon May & Associates, P.C. (Stim & Warmuth, P.C., Farmingville, N.Y. [Glenn P. Warmuth], of counsel), for respondent.

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

In an action to foreclose a mortgage, the defendant Patricia Hamilton appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated March 29, 2013, which, after a hearing to determine the validity of service of process, in effect, denied those branches of her motion which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court (Adler, J.), dated November 22, 2011, entered against her upon her failure to appear or answer, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law and the facts, with costs, and

[983 N.Y.S.2d 586]

those branches of the motion of the defendant Patricia Hamilton which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale dated November 22, 2011, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction are granted.

This Court possesses authority to review a determination rendered after a hearing that is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Lopez v. DePietro, 82 A.D.3d 715, 716, 917 N.Y.S.2d 318;American Home Mtge. v. Villaflor, 80 A.D.3d 637, 914 N.Y.S.2d 676).

At the hearing, the plaintiff's process server, who refreshed his recollection with contemporaneous records, testified that he served the appellant with the summons and complaint by employing the personal delivery and mail method pursuant to CPLR 308(2), by delivering, inter alia, a copy of the summons and complaint to Ashley Hamilton, a member of the appellant's...