Moret P'ship v. Spickerman

• Court: New York Supreme Court — Appellate Division
• Citation: Moret P'ship v. Spickerman, 125 A.D.3d 729, 5 N.Y.S.3d 109 (N.Y. App. Div. 2015)
• Decision Date: 11 February 2015
• Parties: MORET PARTNERSHIP, plaintiff-respondent, v. William J. SPICKERMAN, et al., defendants-respondents, et al., defendants; Steven Chabra, intervenor-appellant.

125 A.D.3d 729

5 N.Y.S.3d 109

MORET PARTNERSHIP, plaintiff-respondent,

v.William J. SPICKERMAN, et al., defendants-respondents, et al., defendants;

Steven Chabra, intervenor-appellant.

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

Feb. 11, 2015.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Peter Sullivan of counsel), for intervenor-appellant.

C.M. Fusco Law Group, P.C., Westbury, N.Y. (Carlo M. Fusco of counsel), for defendants-respondents.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.

In an action to foreclose on a real property tax lien, the intervenor, Steven Chabra, appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered June 25, 2013, which, after a hearing to determine the validity of service of process, granted the motion of the defendants William J. Spickerman and Wendy K. Spickerman pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court (Adams, J.) entered October 7, 2010, upon their failure to appear or answer the complaint, and thereupon directed dismissal of the complaint.

ORDERED that the order entered June 25, 2013, is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a new hearing to determine the validity of service of process upon the defendants William J. Spickerman and Wendy K. Spickerman, and thereafter for a new determination of their motion pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale.

The plaintiff commenced this action to foreclose on a tax lien on property owned by the defendants William Spickerman and Wendy Spickerman (hereinafter together the Spickerman defendants). A judgment of foreclosure and sale (hereinafter the judgment) was entered upon the Spickerman defendants' failure to answer the complaint or appear, and thereafter the property was sold to the intervenor, Steven Chabra. Subsequently, the Spickerman defendants moved pursuant to CPLR 5015(a)(4) to vacate the judgment, arguing that jurisdiction over them was not obtained due to improper service of process. The Supreme Court directed a hearing to determine the validity of service of process upon the Spickerman defendants.

At the hearing, the process server testified that his employer maintained a document known as a work ticket that he filled out as a record of each service he effected, but he did not maintain a log book of services. The Supreme Court determined that the process server failed to comply with the record-keeping requirements of General Business Law § 89–u by failing to maintain a log book. Based on this determination alone, the court granted the Spickerman defendants' motion to vacate the judgment and directed dismissal of the complaint for lack of jurisdiction. Chabra appeals.

Contrary to the Spickerman defendants' contention, Chabra has standing to bring this appeal as a party aggrieved by the order appealed from (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ).

Contrary to Chabra's contention, the Supreme Court properly directed a hearing to determine the validity of service of process upon the Spickerman defendants. Their affidavits were sufficient to rebut the presumption of proper service established by the process server's affidavits and necessitated a hearing on the issue of service (see Machovec v. Svoboda, 120 A.D.3d 772, 773–774, 992 N.Y.S.2d 279 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 ).

However, the Supreme Court erred in concluding that the process server failed to comply with General Business Law § 89–u...