Tremont Federal Sav. and Loan Ass'n v. Ndanusa
| Decision Date | 28 November 1988 |
| Citation | 535 N.Y.S.2d 8,144 A.D.2d 660 |
| Parties | TREMONT FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Respondent, v. Mohammed K. NDANUSA, et al., Appellants, Charles Monaco, nonparty-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Eve Bunting, White Plains, for appellants.
Abrams Lerner Kisseloff, Kissin & Lapidus, P.C., New York City (Samuel J. Kisseloff, of counsel), for plaintiff-respondent.
Jo Ann Friia, White Plains, for nonparty respondent.
Before MOLLEN, P.J., and BROWN, EIBER and KOOPER, JJ.
MEMORANDUM BY THE COURT.
In an action to foreclose a mortgage, the defendants Mohammed K. Ndanusa and Carol A. Tracey appeal from an order of the Supreme Court, Westchester County (Marbach, J.) dated April 23, 1987, which denied their motion to vacate a default judgment dated June 4, 1986, and to set aside the foreclosure sale.
ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff-respondent and the nonparty respondent.
We disagree with the appellants' contention that the order of publication was improperly issued. For a court to issue an order of publication under CPLR 308(5) on the ground that service is impracticable under subdivisions one, two and four of that section, the applicant is not required to prove due diligence, which is a higher standard than "impracticable" (Dobkin v. Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451), or show actual prior attempts to serve a party under each and every method provided in the statute (Saulo v. Noumi, 119 A.D.2d 657, 501 N.Y.S.2d 95; Salesi v. Nieves, 93 A.D.2d 858, 461 N.Y.S.2d 361). Thus, even if the process server's statements that he attempted service eight different times are untrue, as alleged by the defendant Carol A. Tracey and her sister, the order of publication would still be proper insofar as prior attempts at service need not be shown.
The facts establish that the Supreme Court properly denied the appellants' motion to vacate the default judgment. The appellant Carol A. Tracey admits that she received a copy of the order of publication with a copy of the summons and complaint in the mail one and one-half years prior to the sale. Instead of contesting jurisdiction on the ground of improper service and, therefore, the court's jurisdiction, or interposing an answer, she chose to ignore it. Thus, although the appellants need not show a valid excuse under CPLR 317, denial of the motion was proper because they had notice of the...
To continue reading
Request your trial
-
NY STATE NAT. ORGANIZATION FOR WOMEN v. Terry
...prior attempts to serve a party under each and every method provided in the statute. See Tremont Federal Savings and Loan Assoc. v. Ndanusa, 144 A.D.2d 660, 661, 535 N.Y.S.2d 8, 9 (2d Dep't 1988); Saulo v. Noumi, 119 A.D.2d 657, 658, 501 N.Y.S.2d 95, 97 (2d Dep't 1986); Liebeskind v. Liebes......
-
Home Federal Sav. Bank v. Versace
...Astrologo v. Serra, 240 A.D.2d 606, 659 N.Y.S.2d 481; Kelly v. Lewis, 220 A.D.2d 485, 632 N.Y.S.2d 186; Tremont Fed. Sav. & Loan Assn. v. Ndanusa, 144 A.D.2d 660, 535 N.Y.S.2d 8). Although the impracticability standard " 'is not capable of easy definition' " (Markoff v. South Nassau Communi......
-
FCNB Spiegel Inc. v. Dimmick
...of service with "due diligence," the higher standard required for "nail-and-mail" service. CPLR 308(4); Tremont Federal Savings & Loan Ass'n v. Ndanusa, 144 A.D.2d 660, 535 N.Y.S.2d 8. Rather, plaintiff must show that no other statutory method of service is practicable: i.e., that it is imp......
-
Kelly v. Lewis
...to serve a party under each and every method provided in the statute have been undertaken (see, e.g., Tremont Fed. Sav. & Loan Assn. v. Ndanusa, 144 A.D.2d 660-661, 535 N.Y.S.2d 8; see also, Dobkin v. Chapman, 21 N.Y.2d 490, 289 N.Y.S.2d 161, 236 N.E.2d 451; Markoff v. South Nassau Communit......