Nationstar Mortg., LLC v. Cohen

• Decision Date: 29 July 2020
• Docket Number: Index No. 4826/09,2019–01073,2019–01072
• Parties: NATIONSTAR MORTGAGE, LLC, Plaintiff, v. Avi COHEN, et al., Respondents, et al., Defendants; Citimortgage, Inc., Nonparty-Appellant.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 1039

128 N.Y.S.3d 574

NATIONSTAR MORTGAGE, LLC, Plaintiff,

v.Avi COHEN, et al., Respondents, et al., Defendants;

Citimortgage, Inc., Nonparty-Appellant.

2019–01072

2019–01073

Index No. 4826/09

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

Submitted—May 12, 2020

July 29, 2020

Davidson Fink LLP, Rochester, N.Y. (Richard N. Franco of counsel), for nonparty—appellant.

Wenig Saltiel LLP, Brooklyn, N.Y. (Dan M. Blumenthal of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., CHERYL E. CHAMBERS, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, nonparty Citimortgage, Inc., appeals from (1) an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated October 9, 2018, and (2) a decision of the same court (Derefim Neckles, Ct. Atty. Ref.), dated November 29, 2018. The order, insofar as appealed from, granted those branches of the motion of the defendants Avi Cohen and Simone Cohen which were pursuant to CPLR 5015(a)(4) to vacate an amended judgment of foreclosure and sale of the same court (Mark I. Partnow, J.) dated October 5, 2017, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction to the extent of directing a hearing.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. J.A. Green Const. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that on the Court's own motion, the nonparty-appellant's notice of appeal from the order granting those branches of the motion of the defendants Avi Cohen and Simone Cohen which were pursuant to CPLR 5015(a)(4) to vacate the amended judgment of foreclosure and sale dated October 5, 2017, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction to the extent of directing a hearing is deemed to be an application for leave to appeal from the order, and leave to appeal from the order is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the motion of the defendants Avi Cohen and Simone Cohen which were pursuant to CPLR 5015(a)(4) to vacate the amended judgment of foreclosure and sale dated October 5, 2017, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction are denied; and it is further,

ORDERED that one bill of costs is awarded to the nonparty-appellant.

In February 2009, the plaintiff's predecessor in interest, nonparty Citimortgage, Inc., commenced this action to foreclose a mortgage against the defendants Avi Cohen and Simone Cohen (hereinafter together the defendants), among others, encumbering certain property in Brooklyn. The defendant Simone Cohen was allegedly served at the mortgaged premises pursuant to CPLR 308(1) and the defendant Avi Cohen was allegedly served pursuant to CPLR 308(2), and the defendants failed to answer the complaint or appear in the action. The Supreme Court entered an amended judgment of foreclosure and sale dated October 5, 2017, on default, inter alia, directing the sale of the subject property.

By order to show cause dated August 14, 2018, the defendants moved, among other things, pursuant to CPLR 5015(a)(4) to vacate the amended judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. In an order dated October 9, 2018, the Supreme Court granted the motion to the extent of directing a hearing to determine the validity of service of process. After that hearing, in a decision dated November 29, 2018, the Court Attorney Referee determined that the plaintiff failed to establish that service was effectuated upon the defendants.

The affidavit of a process server constituted prima facie evidence of proper service (see HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ; U.S. Bank, N.A. v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 ). To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service (see HSBC Bank USA v. Archer, 173 A.D.3d 984, 985, 104 N.Y.S.3d 150 ; HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d at 945, 74 N.Y.S.3d 285 ). A sworn denial of receipt of service containing "detailed and specific contradiction of the allegations in the process server's affidavit" may defeat the presumption of proper service ( Machovec v. Svoboda, 120 A.D.3d 772, 773, 992 N.Y.S.2d 279 ; see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776–777, 51 N.Y.S.3d 523 ).

Here, the affidavit of service contained sworn allegations reciting that service was made upon Simone Cohen at 4:48 p.m. on March 3, 2009, by delivering to her the summons, complaint, and notice required by RPAPL 1303 at the subject property. The affidavit of service included a description of Simone Cohen. Another affidavit of service of the same...