U.S. Bank v. Henry

• Docket Number: s. 2020-05627,2021-01537,Index No. 608724/18
• Decision Date: 23 August 2023
• Parties: U.S. Bank National Association, etc., respondent, v. Miguel J. Henry, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 04391

U.S. Bank National Association, etc., respondent,
v.
Miguel J. Henry, etc., appellant, et al., defendants.

Nos. 2020-05627, 2021-01537, Index No. 608724/18

Supreme Court of New York, Second Department

August 23, 2023

Harvey Sorid, P.C., Uniondale, NY, for appellant.

LOGS Legal Group, LLP, Rochester, NY (Ellis M. Oster of counsel), for respondent.

BETSY BARROS, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Miguel J. Henry appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered June 29, 2020, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered October 19, 2020. The order granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale and denied, without a hearing, the cross-motion of the defendant Miguel J. Henry pursuant to CPLR 5015(a)(4), in effect, to vacate an order of the same court entered June 12, 2019, granting the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment and for an order of reference, and thereupon, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against that defendant for lack of personal jurisdiction, or, in the alternative, for a hearing to determine the validity of service of process upon him. The order and judgment of foreclosure and sale granted the same relief to the plaintiff, confirmed the referee's report, and directed the sale of the subject property.

ORDERED that the appeal from the order entered June 29, 2020, is dismissed; and it is further, ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale is denied, that branch of the cross-motion of the defendant Michael J. Henry which was for a hearing to determine the validity of service of process upon him is granted, the order entered June 29, 2020, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the validity of service of process upon the defendant Miguel J. Henry, and thereafter for a new determination of the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale and those branches of the defendant's cross-motion which were pursuant to CPLR 5015(a)(4), in effect, to vacate an order of the same court entered June 12, 2019, granting the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment and for an order of reference, and thereupon, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction; and it is further, ORDERED that one bill of costs is awarded to the defendant Miguel J. Henry.

The appeal from the order entered June 29, 2020, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1]).

In November 2005, the defendant Miguel J. Henry (hereinafter the defendant) executed a note secured by a mortgage on real property located in East Meadow. In September 2008, the defendant entered into a loan modification agreement, in which he agreed to amend and supplement the note and mortgage and to establish a new principal balance. In June 2018, the plaintiff commenced this mortgage foreclosure action against the defendant and others. According to an affidavit of service, the defendant was served with the summons and complaint pursuant to CPLR 308(4). When none of the defendants answered the complaint or appeared in the action, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. In an order entered June 12, 2019, the Supreme Court granted the plaintiff's unopposed motion and referred the matter to a referee to compute the amount due to the plaintiff.

In October 2019, upon the referee's calculation of the amount due to the plaintiff, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant cross-moved pursuant to CPLR 5015(a)(4), in effect, to vacate the order entered June 12, 2019, and thereupon, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, or, in the alternative, for a hearing to determine the validity of service of process upon him. In an order entered June 29, 2020, the Supreme Court granted the plaintiff's motion and denied the defendant's cross-motion. In an order and judgment of foreclosure and sale entered October 19, 2020, the Supreme Court granted the plaintiff the same relief, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.

"Pursuant to CPLR 5015(a)(4), '[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person... upon the ground of... lack of jurisdiction to render the judgment or order.' Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308" (Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d 736, 737-738, quoting CPLR 5015[a][4]). "The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void" (Wells Fargo Bank, N.A. v Enitan, 200 A.D.3d at 738). Where service is effected pursuant to CPLR 308(4), the affix and mail method, the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode of the person to be served and mailed to such person's last known residence. The "dwelling place"...