Taron Partners, LLC v. McCormick

• Decision Date: 12 June 2019
• Docket Number: 2016–10543,Index No. 55158/14
• Citation: 173 A.D.3d 927,103 N.Y.S.3d 485
• Parties: TARON PARTNERS, LLC, Plaintiff-Respondent, v. Suzanne V. MCCORMICK, Appellant; C2GRE, LLC, Nonparty-Respondent.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 927
103 N.Y.S.3d 485

TARON PARTNERS, LLC, Plaintiff-Respondent,
v.
Suzanne V. MCCORMICK, Appellant;

C2GRE, LLC, Nonparty-Respondent.

2016–10543
Index No. 55158/14

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

Argued—March 4, 2019
June 12, 2019

The Griffith Firm, New York, N.Y. (Edward Griffith of counsel), for appellant.

Kurzman, Eisenberg, Corbin & Lever, LLP, White Plains, N.Y. (John C. Re of counsel), for plaintiff-respondent.

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

173 A.D.3d 928

ORDERED that the order dated September 13, 2016, is affirmed, with costs.

The plaintiff commenced this action by filing a summons and complaint on April 4, 2014. The defendant failed to appear or answer the complaint, and the plaintiff moved for a default judgment and an order of reference. In March 2015, the Supreme Court granted the plaintiff's motion without opposition. On May 26, 2015, the court entered a judgment of foreclosure and sale, and the subject property was sold at auction on September 28, 2015.

By order to show cause entered June 6, 2016, the defendant moved, inter alia, to vacate the judgment of foreclosure and sale, set aside the sale, and dismiss the complaint on the ground, inter alia, that she was never served with the summons and complaint. In an order entered September 13, 2016, the Supreme Court denied

103 N.Y.S.3d 487

the defendant's motion, and the defendant appeals from that order.

A process server's affidavit of service constitutes prima facie evidence of proper service (see HSBC Bank USA, N.A. v. Daniels , 163 A.D.3d 639, 640, 81 N.Y.S.3d 584 ; Nationstar Mtge., LLC v. Dekom , 161 A.D.3d 995, 996, 78 N.Y.S.3d 148 ; Summitbridge Credit Invs., LLC v. Wallace , 128 A.D.3d 676, 677, 9 N.Y.S.3d 320 ; JPMorgan Chase Bank, N.A. v. Todd , 125 A.D.3d 933, 5 N.Y.S.3d 181 ). "Although 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" ( Deutsche Bank Natl. Trust Co. v. Quinones , 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 [internal quotation marks omitted]; see Nationstar Mtge., LLC v. Dekom , 161 A.D.3d at 996, 78 N.Y.S.3d 148 ; Bank of N.Y. v. Samuels , 107 A.D.3d 653, 653–654, 968 N.Y.S.2d 93 ). Affix and mail service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion cannot be made with due diligence (see CPLR 308[4] ; Nationstar Mtge., LLC v. Dekom , 161 A.D.3d at 996, 78 N.Y.S.3d 148 ; Deutsche Bank Natl. Trust Co. v. White , 110 A.D.3d 759, 759–760, 972 N.Y.S.2d 664 ; Estate of Waterman v. Jones , 46 A.D.3d 63, 65, 843 N.Y.S.2d 462 ). "As a general matter, the due diligence requirement may be met with a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times" ( Nationstar Mtge., LLC v. Dekom , 161 A.D.3d at 996, 78 N.Y.S.3d 148 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v. White , 110 A.D.3d at 760, 972 N.Y.S.2d 664 ; Estate of Waterman v. Jones , 46 A.D.3d at 65, 843 N.Y.S.2d 462 ).

173 A.D.3d 929

Here, the plaintiff submitted an affidavit of the process server, which demonstrated that three visits were made to the defendant's residence, on different days, at different times of the day when the defendant could reasonably have been expected to be found at home, but the process server was unable, "with due diligence to find the defendant or a person...