U.S. Bank, Nat'l Ass'n v. Schumacher, 2017–05486
| Decision Date | 15 May 2019 |
| Docket Number | 2017–05486,Index No. 8073/14 |
| Citation | 172 A.D.3d 1137,101 N.Y.S.3d 190 |
| Parties | US BANK, NATIONAL ASSOCIATION, etc., Respondent, v. Michelle SCHUMACHER, etc., et al., defendants, Robert Schumacher, Appellant. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 1137
101 N.Y.S.3d 190
US BANK, NATIONAL ASSOCIATION, etc., Respondent,
v.
Michelle SCHUMACHER, etc., et al., defendants,
Robert Schumacher, Appellant.
2017–05486
Index No. 8073/14
Supreme Court, Appellate Division, Second Department, New York.
Argued - February 21, 2019
May 15, 2019
Miller Rosado & Algios, LLP, Garden City, N.Y. (Christopher Rosado of counsel), for appellant.
Eckert Seamans Cherin & Mellot, LLC, White Plains, N.Y. (Riyaz G. Bhimani of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County for a hearing to determine whether personal jurisdiction over the defendant Robert Schumacher was obtained, and a new determination of his motion thereafter.
In this mortgage foreclosure action, the defendant Robert Schumacher (hereinafter the defendant) moved pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground that he was not properly served with the summons and complaint. The Supreme Court denied the motion without a hearing. The defendant appeals.
The Supreme Court should not have denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him without conducting a hearing. CPLR 308(2) authorizes service, inter alia, by delivery of 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 or actual place of business. The term "usual place of abode" means a place at which the person lives with a degree of permanence and stability and to which he or she intends to return (see Feinstein v. Bergner, 48 N.Y.2d 234, 239, n 3, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ; HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ; Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 777, 51 N.Y.S.3d 523 ).
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