U.S. Bank Nat'l Ass'n v. Martinez
| Citation | 2016 N.Y. Slip Op. 03981,139 A.D.3d 548,34 N.Y.S.3d 3 |
| Decision Date | 19 May 2016 |
| Docket Number | 1215N, 380626/12. |
| Parties | U.S. BANK NATIONAL ASSOCIATION as Trustee for WAMU Mortgage Pass Through Certificate for Wmalt Series 2007–2 Trust, Plaintiff–Respondent, v. Jacobo MARTINEZ, et al., Defendants, Wanys Martinez, Defendant–Appellant. |
| Court | New York Supreme Court Appellate Division |
139 A.D.3d 548
34 N.Y.S.3d 3
2016 N.Y. Slip Op. 03981
U.S. BANK NATIONAL ASSOCIATION as Trustee for WAMU Mortgage Pass Through Certificate for Wmalt Series 2007–2 Trust, Plaintiff–Respondent,
v.
Jacobo MARTINEZ, et al., Defendants,
Wanys Martinez, Defendant–Appellant.
1215N, 380626/12.
Supreme Court, Appellate Division, First Department, New York.
May 19, 2016.
McCallion & Associates LLP, New York (Kenneth F. McCallion of counsel), for appellant.
Fein, Such & Crane, LLP, Syracuse (John A. Cirando of counsel), for respondent.
TOM, J.P., SAXE, RICHTER, GISCHE, and WEBBER, JJ.
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 28, 2015, which denied defendant Wanys Martinez's motion to vacate her default in answering the complaint and for leave to extend her time to file an answer to the complaint, unanimously affirmed, with costs.
The motion court properly found that jurisdiction, in this mortgage foreclosure action, had been obtained over defendant Wanys Martinez and thus she had not established entitlement to vacatur pursuant to CPLR 5015(a)(4). Defendant's conclusory denial of service failed to rebut the presumption of service created by the process server's properly executed affidavit (see Matter of de Sanchez, 57 A.D.3d 452, 454, 870 N.Y.S.2d 24 [1st Dept.2008] ), which reflects that service was effectuated by delivering the summons and complaint
“to a person of suitable age and discretion at [defendant's] actual ... dwelling place or usual place of abode,” followed by the requisite mailing (CPLR 308[2] ). Defendant admitted that, at the time of service, the subject property was still her “legal address” and that she had only “taken up temporary residence elsewhere,” at an unspecified location, which claim was not substantiated with any documentary evidence. As defendant “never established a permanent alternative ‘actual dwelling’ or ‘usual place of abode’...
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