Rattner v. Fessler
| Decision Date | 16 February 2022 |
| Docket Number | 2019–10591,Index No. 608348/17 |
| Parties | Steven RATTNER, respondent, v. Gillian FESSLER, et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
202 A.D.3d 1011
163 N.Y.S.3d 575
Steven RATTNER, respondent,
v.
Gillian FESSLER, et al., appellants, et al., defendants.
2019–10591
Index No. 608348/17
Supreme Court, Appellate Division, Second Department, New York.
Argued—November 5, 2021
February 16, 2022
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, 47 N.Y.S.3d 393 ). Pursuant to CPLR 308(2), personal service upon a natural person shall be...
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