Rattner v. Fessler
| Citation | 2022 NY Slip Op 01058 |
| Decision Date | 16 February 2022 |
| Docket Number | 2019-10591,Index 608348/17 |
| Parties | Steven Rattner, respondent, v. Gillian Fessler, et al., appellants, et al., defendants. |
| Court | United States State Supreme Court (New York) |
The Law Offices of Lawrence Katz, PLLC, Valley Stream, NY, for appellants.
Bronster LLP, New York, NY (Alexandra C. Mink and Michael Zacharias of counsel), for respondent.
HECTOR D. LASALLE, P.J., COLLEEN D. DUFFY, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Gillian Fessler, Shaina Fessler, Taryn Fessler, and Eric Fessler, as executor of the estate of Geri Fessler, appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered August 5, 2019. The order and judgment of foreclosure and sale, inter alia, upon an order of the same court dated March 4, 2019, among other things, granting that branch of the plaintiff's motion which was for leave to reargue (1) those branches of his prior motion which were for leave to enter a default judgment against those defendants and for an order of reference, and (2) the plaintiff's opposition to that branch of those defendants' prior cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them, which branches of the prior motion and cross motion had been denied and granted respectively, in an order of the same court dated August 22 2018, and, upon reargument, in effect, vacating those portions of the order dated August 22, 2018, and thereupon granting those branches of the plaintiff's prior motion and denying that branch of those defendants' prior cross motion, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, with costs, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, the determination in the order dated March 4, 2019, upon reargument, in effect vacating the determination in the order dated August 22, 2018, denying those branches of the plaintiff's prior motion which were for leave to enter a default judgment against the defendants Taryn Fessler and Eric Fessler, as executor of the estate of Geri Fessler, and thereupon granting those branches of the plaintiff's prior motion is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the validity of service of process upon the defendants Taryn Fessler and Eric Fessler, as executor of the estate of Geri Fessler, and for a new determination thereafter, upon reargument, of those branches of the plaintiff's prior motion which were for leave to enter a default judgment against the defendants Taryn Fessler and Eric Fessler, as executor of the estate of Geri Fessler.
On or about March 3, 2010, Geri Fessler executed a document (hereinafter the subject document) granting the plaintiff a security interest encumbering real property located in Merrick (hereinafter the subject property). The subject document provided, inter alia, that the security interest was given to secure the payment of an indebtedness in the sum of $1 million from Geri Fessler to the plaintiff, and that Geri Fessler agreed to "pay the indebtedness" as provided in the subject document. Geri Fessler (hereinafter the decedent) died on December 21, 2011, and Eric Fessler was thereafter appointed executor of the decedent's estate. On January 5, 2015, Eric Fessler, as executor, transferred title to the subject property to Gillian Fessler, Shaina Fessler, and Taryn Fessler, as tenants in common.
In August 2017, the plaintiff commenced this action against, among others, the defendants Gillian Fessler, Shaina Fessler, Taryn Fessler, and Eric Fessler, as executor (hereinafter collectively the defendants), to foreclose the mortgage encumbering the subject property. The complaint alleged, inter alia, that the subject document constituted a combined note and mortgage. The defendants allegedly failed to appear or answer the complaint. The plaintiff moved, among other things, for leave to enter a default judgment against the defendants and for an order of reference. The defendants opposed the plaintiff's motion and cross-moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them. In an order dated August 22, 2018, the Supreme Court, among other things, denied those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendants and for an order of reference, and granted that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them. The plaintiff moved for leave to reargue both his prior motion and his opposition to that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them.
In an order dated March 4, 2019, the Supreme Court granted the plaintiff's motion for leave to reargue, and, upon reargument, in effect, inter alia, vacated the determination in the August 22, 2018 order denying those branches of the plaintiff's prior motion which were for leave to enter a default judgment against the defendants and for an order of reference, and granted those branches of the plaintiff's prior motion, and, in effect, vacated the determination in the August 22, 2018 order granting that branch of the defendants' cross motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint insofar as asserted against them, and denied that branch of the defendants' cross motion. In another order, also dated March 4, 2019, the court, inter alia, appointed a referee to compute the amount due to the plaintiff. By order and judgment of foreclosure and sale entered August 5, 2019, the court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, and directed the sale of the subject property. The defendants appeal from the order and judgment of foreclosure and sale.
The Supreme Court, upon reargument, properly granted that branch of the plaintiff's prior motion which was for leave to enter a default judgment against Gillian and Shaina. On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant's default (see CPLR 3215[f]; Allstate Prop. & Cas. Ins. Co. v Carrier, 147 A.D.3d 889, 890). Pursuant to CPLR 308(2), personal service upon a natural person shall be made "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by... mailing the summons to the person to be served at his or her last known residence" (see Wells Fargo Bank, N.A. v Heaven, 176 A.D.3d 761, 762; 1136 Realty, LLC v 213 Union St. Realty Corp., 130 A.D.3d 590, 591). CPLR 308(4) provides that where personal service under CPLR 308(1) and (2) "cannot be made with due diligence," service may be made by affixing the summons to the door of the defendant's "actual place of business, dwelling place or usual place of abode" (id. § 308[4]) and by mailing the summons either to the defendant's last known residence or actual place of business (see id.; Bank of Am., N.A. v Rolf, 188 A.D.3d 770, 772). "Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service" (FV-1, Inc. v Reid, 138 A.D.3d 922, 923; see U.S. Bank, N.A. v Schumacher, 172 A.D.3d 1137, 1137).
Here, the plaintiff provided affidavits of service demonstrating, prima facie, that Gillian was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of Gillian's residence, and by mailing a copy of the summons and complaint to Gillian's last known residence (see Wells Fargo Bank, NA v Tobing, 175 A.D.3d 745, 747; Taron Partners, LLC v McCormick, 173 A.D.3d 927, 929; Deutsche Bank Natl. Trust Co. v Stolzberg, 165 A.D.3d 624, 625; Argent Mtge. Co., LLC v Vlahos, 66 A.D.3d 721). Contrary to the defendants' contention, the allegations contained in the affidavit of the plaintiff's process server were sufficient to establish the requisite mailing (see Feinstein v Bergner, 48 N.Y.2d 234, 240 n 4; Matter of Saralloyd CC. v Mitchel DD., 197 A.D.2d 304, 307; Donohue v La Pierre, 99 A.D.2d 570). Further, the plaintiff provided copies of affidavits of service demonstrating, prima facie, that Shaina was served with the summons and complaint pursuant to CPLR 308(2) by delivering a copy of the summons and complaint to "Seth Fessler, Husband," "a person of suitable age and discretion," at Shaina's residence, and by mailing a copy of the summons and complaint to Shaina's last known residence (see Feinstein v Bergner, 48 N.Y.2d at 240 n 4; Bank of Am., N.A. v Genzler, 188 A.D.3d 634; Nationstar Mtge., LLC v Kamil, 155 A.D.3d 966, 967; Daguerre, S.A.R.L. v Rabizadeh, 112 A.D.3d 876, 878; Matter of Saralloyd CC. v Mitchel DD., 197 A.D.2d at 307; Donohue v La Pierre, 99 A.D.2d 570). The plaintiff also demonstrated that both Gillian and Shaina failed to appear or answer within the time allowed (see Gray v Doyle, 170 A.D.3d 969).
In addition, contrary to the defendants' contention, the plaintiff also established the existence of a viable cause of action with evidence that the decedent had agreed in the subject document to pay a debt owed to the plaintiff and that the debt was...
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