OneWest Bank FSB v. Perla
| Decision Date | 29 December 2021 |
| Docket Number | 2018-05052,(Index No. 25172/09) |
| Citation | 2021 NY Slip Op 07550 |
| Parties | OneWest Bank FSB, appellant, v. Nissan Perla, et al., respondents, et al., defendants. |
| Court | New York Supreme Court |
Argued - November 24, 2020.
Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for appellant.
Law Office of Jeffrey Fleischmann, P.C., New York, NY (Gary M Heller of counsel), for respondents.
WILLIAM F. MASTRO, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated February 16, 2018. The order, after a hearing to determine the validity of service of process, granted that branch of the motion of the defendants Nissan Perla and 222 Beach 40th St., LLC, which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Nissan Perla.
ORDERED that the order is reversed, on the law, with costs, and that branch of the motion of the defendants Nissan Perla and 222 Beach 40th St., LLC, which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Nissan Perla is denied.
In 2009, the plaintiff commenced this action to foreclose a mortgage granted by the defendant Nissan Perla on July 6, 2006, on property located in Far Rockaway to secure indebtedness of $420, 000. An affidavit of service filed with the Queens County Clerk's office on October 19, 2009, recites that Perla was served on October 8, 2009, by delivery of the summons and complaint to a person of suitable age and discretion, identified as "DOREEN G., MANAGER," at Perla's place of employment, followed by a mailing on October 14, 2009, to Perla's last known address. The affidavit of service included a detailed physical description of the person at Perla's office to whom the papers were purportedly delivered.
By notice of motion dated December 16, 2015, Perla and the defendant 222 Beach 40th St., LLC (), moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Perla. In support of the motion, Perla submitted an affidavit in which he averred that he was never served with the summons and complaint. He further averred that, although the "affidavit of service . . . claims to have served someone named Dorren G. Manager [sic] at my place of employment," "[t]here is no person by that name that ever worked in my office nor does [sic] I know anyone by that name." The plaintiff opposed the motion, arguing, among other things, that Perla's denial of service did not rebut the presumption of proper service created by the process server's affidavit. In an order dated October 17, 2016, the Supreme Court found that a hearing was necessary to determine the validity of service of process upon Perla.
After conducting a hearing, in an order dated February 16, 2018, the Supreme Court found that service of process was not validly effectuated upon Perla, and granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Perla. The plaintiff appeals from the order dated February 16, 2018. We reverse.
As an initial matter, contrary to the conclusion reached by our dissenting colleague, the issue of whether Perla's affidavit sufficiently rebutted the presumption of proper service established by the process server's affidavit so as to warrant a hearing is properly before us. The plaintiff could not have appealed, as of right, from the order dated October 17, 2016, since it merely directed a judicial hearing to aid in the disposition of a motion and did not affect a substantial right (see U.S. Bank N.A. v Roque, 172 A.D.3d 948, 949-950). We agree with our dissenting colleague that CPLR 5501(a)(1) is not the operative statute giving rise to appellate jurisdiction to review this matter, as the appeal is from an order and not from a "final judgment." Rather, our jurisdiction is premised upon CPLR 5501(c), which directs that this Court "shall review questions of law and questions of fact on an appeal from a[n] . . . order of a court of original instance," as well as the consistent line of cases from this Court holding that an appeal from an order granting a motion to dismiss based upon lack of personal jurisdiction-issued after a hearing-also brings up for review the issue of whether a hearing was necessary to determine the motion (see Green Tree Servicing, LLC v Frantzeskakis, A.D.3d, 2021 NY Slip Op 06675 [2d Dept]; Turner v Sideris, 187 A.D.3d 963; HSBC Bank USA, N.A. v Sprei, 180 A.D.3d 763; Mileski v MSC Indus. Direct Co., Inc., 159 A.D.3d 690, 691; see also Deutsche Bank Natl. Trust Co. v Jorgensen, 185 A.D.3d 784, 785).[*]
Since an order directing a hearing to aid in the determination of a motion holds the determination of the motion in abeyance, the subsequent order made after the hearing is "the proper order to appeal from" (Deutsche Bank Natl. Trust Co. v Jorgensen, 185 A.D.3d at 785 []). Thus, the plaintiff properly filed a notice of appeal from the February 16, 2018 order, which was the order that finally determined that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Perla (see Deutsche Bank Natl. Trust Co. v Jorgensen, 185 A.D.3d at 785 []).
Our dissenting colleague relies upon two cases from the Appellate Division, First Department, Wells Fargo Bank, N.A. v Gore (162 A.D.3d 437) and B.N. Realty Assoc. v Lichtenstein (21 A.D.3d 793, 797), for the proposition that, once a hearing to determine the validity of service of process is held, the issue of whether the hearing should have been directed becomes academic. While Gore stands for that proposition on its face, Lichtenstein does not. In Lichtenstein, the issue of whether the Supreme Court properly directed a hearing was rendered academic because the defendant's jurisdictional defense was deemed waived, not because the hearing had subsequently taken place. To the extent that Gore relied solely upon Lichtenstein in reaching its conclusion, respectfully, its reasoning was not sound.
Turning now to the issue of whether the Supreme Court properly directed a hearing on the issue of whether Perla was properly served, "[a]lthough a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" (City of New York v Miller, 72 A.D.3d 726, 727). Here, the affidavit of service relied upon by the plaintiff constituted prima facie proof of proper service upon Perla (see Cavalry Portfolio Servs., LLC v Reisman, 55 A.D.3d 524, 525).
However, Perla's conclusory averments that someone named "Dorren G. Manager [sic]" never worked at his office and that he did not know someone by that name, were insufficient to rebut the presumption of proper service (see Nationstar Mtge., LLC v Kamil, 155 A.D.3d 966, 967; Wells Fargo Bank, N.A. v Decesare, 154 A.D.3d 717, 718; US Bank N.A. v Ramos, 153 A.D.3d 882, 884). Therefore, "a hearing, at which the burden shifted to [the plaintiff] to establish proper service by a preponderance of the evidence, was not warranted" (Mileski v MSC Indus. Direct Co., Inc., 159 A.D.3d at 693). Accordingly, the Supreme Court should have denied the branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Perla (see Mileski v MSC Indus. Direct Co., Inc., 159 A.D.3d at 691).
The plaintiff's remaining contention is academic. The defendants' remaining contentions are not properly before us, as the remaining branches of their motion are pending and undecided (see Katz v Katz, 68 A.D.2d 536).
WOOTEN, J., concurs in the result, and votes to reverse the order, on the law, and deny that branch of the motion of the defendants Nissan Perla and 222 Beach 40th St., LLC, which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant Nissan Perla, with the following memorandum:
Based upon this Court's precedent, I am constrained to concur with the determination of my colleagues in the plurality, but write separately to express my concerns with the outcome.
As my dissenting colleague and my colleagues in the plurality agree, the plaintiff's appeal from the order dated February 16, 2018, does not bring up for review the order dated October 17, 2016, pursuant to CPLR 5501(a)(1), which applies only to an appeal from a "final judgment." The issue of whether an appeal from a final judgment would bring up for review an order directing a hearing to aid in the determination of a motion pursuant to CPLR 5501(a)(1) is not before this Court on the subject appeal. Thus, while inconsistent precedent has arisen in this Court on that issue (compare Mileski v MSC Indus. Direct Co., Inc., 159 A.D.3d 690, with Posner v Post Rd. Dev. Equity, 253 A.D.2d 866), the subject appeal does not present a suitable basis to address that issue.
Rather the instant appeal involves the...
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