JPMorgan Chase Bank v. Kothary

• Decision Date: 11 December 2019
• Docket Number: Index No. 35331/09,2017–00273
• Parties: JPMORGAN CHASE BANK, National Association, etc., Respondent, v. Manish KOTHARY, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 791
113 N.Y.S.3d 738

JPMORGAN CHASE BANK, National Association, etc., Respondent,
v.
Manish KOTHARY, Appellant, et al., Defendants.

2017–00273
Index No. 35331/09

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

Argued—February 4, 2019
December 11, 2019

113 N.Y.S.3d 739

Frederick P. Stern, P.C., Nesconset, NY, for appellant.

Parker Ibrahim & Berg LLC, New York, N.Y. (Anthony Del Guercio and Scott Parker of counsel), for respondent.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

178 A.D.3d 791

In an action to foreclose a mortgage, the defendant Manish Kothary appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated November 15, 2016. The order granted the plaintiff's motion pursuant to CPLR 306–b for an extension of time to serve the defendant Manish Kothary with the summons and complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process.

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff's motion which was pursuant to CPLR 308(5) to direct an alternative method for service of process, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff.

On June 8, 2007, the defendant Manish Kothary executed a note which was secured by a mortgage on real property located

178 A.D.3d 792

in Suffolk County. On the same day, Kothary also executed a consolidation, extension, and modification agreement which consolidated the note and mortgage with a prior mortgage loan balance into a single lien. In March 2008, Kothary defaulted on his monthly payments under the consolidated note, and in September 2009, the plaintiff, as the holder of the consolidated note, commenced this foreclosure action. Kothary failed to appear in the action or answer the complaint. On January 22, 2014, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was to appoint a referee to compute the amount due to the plaintiff.

Thereafter, Kothary moved to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction, and the plaintiff cross-moved pursuant to CPLR 306–b for an extension of time to serve Kothary with the summons and the complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary's attorney. The Supreme Court granted the defendant's motion to the extent of ordering a hearing to determine the validity of service of process, and denied the plaintiff's cross motion without prejudice to renew. Following the hearing, the court vacated, pursuant to CPLR 5015(a)(4), Kothary's default and the order of reference dated January 22, 2014, and, in effect, directed dismissal of the action pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction over Kothary.

113 N.Y.S.3d 740

In December 2015, the plaintiff again moved pursuant to CPLR 306–b for an extension of time to serve Kothary with the summons and complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting...