U.S. Bank Trust, N.A. v. Catalano

• Docket Number: 2020–02147, 2020–02148,Index No. 6907/16
• Decision Date: 26 April 2023
• Citation: 215 A.D.3d 992,188 N.Y.S.3d 594
• Parties: U.S. BANK TRUST, N.A., etc., respondent, v. Gregg CATALANO, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

215 A.D.3d 992

188 N.Y.S.3d 594

U.S. BANK TRUST, N.A., etc., respondent,

v.Gregg CATALANO, etc., appellant, et al., defendants.

2020–02147, 2020–02148

Index No. 6907/16

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

Argued—November 29, 2022

April 26, 2023

The Ranalli Law Group, PLLC, Hauppauge, NY (Ernest E. Ranalli of counsel), for appellant.

Stern & Eisenberg, P.C., Depew, NY (Stacey A. Weisblatt–Knipp of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., PAUL WOOTEN, LARA J. GENOVESI, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Gregg Catalano appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered September 9, 2019, and (2) an order of the same court entered September 25, 2019. The order entered September 9, 2019, denied that defendant's motion, in effect, pursuant to CPLR 5015(a)(4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered January 25, 2018, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The order entered September 25, 2019, denied that defendant's motion to stay the foreclosure sale of the subject property.

ORDERED that the orders are affirmed, with one bill of costs.

In April 2005, the defendant Gregg Catalano (hereinafter the defendant) executed a note in the sum of $480,000 in favor of Washington Mutual Bank, FA, which was secured by a mortgage on certain real property located in Syosset (hereinafter the property). In September 2016, the plaintiff commenced this action to foreclose the mortgage against, among others, the defendant. According to an affidavit of service, the defendant was served with the summons and complaint on September 24, 2016, pursuant to CPLR 308(2) by delivery of a copy of the summons and complaint to the defendant's ex-wife, Debra Catalano, at the property, followed by the mailing of a copy of the summons and complaint to the defendant at the property. The defendant failed to answer the complaint. In an order dated August 2, 2017, the Supreme Court granted the plaintiff's motion, inter alia, for an order of reference. On January 25, 2018, the court entered an order and judgment of foreclosure and sale.

Thereafter, in June 2019, the defendant moved, in effect, pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The defendant also separately moved to stay the foreclosure sale of the property. In an order entered September 9, 2019, the Supreme Court denied the defendant's motion, in effect, to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him. In an order entered September 25, 2019, the court denied the defendant's motion to stay the foreclosure sale of the property. The defendant appeals.

"A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service" ( Bethpage Fed. Credit Union v. Grant, 178 A.D.3d 997, 997, 115 N.Y.S.3d 410 ). "A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit" ( Washington Mut. Bank v. Huggins, 140 A.D.3d 858, 859, 35 N.Y.S.3d 127 ). "In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific,...