Wells Fargo Bank, N.A. v. Tricarico
| Decision Date | 04 May 2016 |
| Docket Number | 2014-04192, 2014-10688, Index No. 18585/07. |
| Citation | 2016 N.Y. Slip Op. 03502,139 A.D.3d 722,32 N.Y.S.3d 213 |
| Parties | WELLS FARGO BANK, N.A., etc., respondent, v. Mark TRICARICO, also known as Mark N. Tricarico, et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
139 A.D.3d 722
32 N.Y.S.3d 213
2016 N.Y. Slip Op. 03502
WELLS FARGO BANK, N.A., etc., respondent,
v.
Mark TRICARICO, also known as Mark N. Tricarico, et al., appellants, et al., defendants.
2014-04192, 2014-10688, Index No. 18585/07.
Supreme Court, Appellate Division, Second Department, New York.
May 4, 2016.
Christopher Thompson, West Islip, N.Y., for appellants.
Bryan Cave LLP, New York, N.Y. (Glenn B. Coleman and Elizabeth J. Goldberg of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
In an action to foreclose a mortgage, the defendants Mark Tricarico, also known as Mark N. Tricarico, and Lynda Tricarico, also known as Linda Tricarico, appeal (1) from an order of the Supreme Court, Suffolk County (MacKenzie, J.), dated December 20, 2013, which denied their motion pursuant to CPLR 317 and 5015, in effect, inter alia, to vacate a judgment of foreclosure and sale of the same court dated April 21, 2008, entered upon their default in appearing or answering the complaint,
to set aside the foreclosure sale held pursuant thereto, and to vacate the referee's deed in foreclosure, and (2), as limited by their brief, from so much of an order of the same court dated June 27, 2014, as, in effect, upon renewal, adhered to the determination in the order dated December 20, 2013.
ORDERED that the appeal from the order dated December 20, 2013, is dismissed, as that order was superseded by the order dated June 27, 2014, made upon renewal; and it is further,
ORDERED that the order dated June 27, 2014, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondent.
The plaintiff commenced this action in June 2007 to foreclose on a mortgage given by the defendants Mark Tricarico, also known as Mark N. Tricarico (hereinafter Mark Tricarico), and Lynda Tricarico, also known as Linda Tricarico (hereinafter Lynda Tricarico; hereinafter together the defendants), on certain residential real property. According to the affidavits of service, service of process was made upon Lynda Tricarico personally (see CPLR 308 [1] ) and upon Mark Tricarico by delivery to Lynda Tricarico, a person of suitable age and discretion (see CPLR 308[2] ), at the subject premises. On April 21, 2008, the Supreme Court issued a judgment of foreclosure and sale entered upon the defendants' default in appearing or answering the complaint. Thereafter, a copy of the judgment of
foreclosure and sale with notice of entry on May 1, 2008, was served on the defendants at the subject premises. The property was subsequently conveyed to the plaintiff by referee's deed. In September 2013, the defendants moved, inter alia, to vacate the judgment entered upon their default and to dismiss the complaint insofar as asserted against them on the ground that they had not been served with process (see CPLR 5015[a][4] ) and, alternatively, to vacate the judgment and for leave to serve a late answer (see CPLR 317 ). The Supreme Court denied the motion. The defendants later moved, inter alia, for leave to renew their motion. The Supreme Court, in effect, granted renewal and, upon renewal, adhered to its prior determination. The defendants appeal.
The affidavit of the process server constituted...
To continue reading
Request your trial
-
Globe Trade Capital, LLC v. Hoey
...712, 131 N.Y.S.3d 601 ; Indymac Fed. Bank, FSB v. Hyman, 74 A.D.3d 751, 901 N.Y.S.2d 545 ; see also Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 723, 32 N.Y.S.3d 213 ). Contrary to Wendy's assertion, the plaintiff does not claim to have personally delivered the summons and complaint......
-
PNC Bank, Nat'l Ass'n v. Bannister
...a hearing (see77 N.Y.S.3d 455 U.S. Bank N.A. v. Cherubin, 141 A.D.3d at 516, 36 N.Y.S.3d 154 ; Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 723, 32 N.Y.S.3d 213 ; Citimortgage, Inc. v. Baser, 137 A.D.3d 735, 736, 26 N.Y.S.3d 352 ; Indymac Fed. Bank, FSB v. Hyman, 74 A.D.3d 751, 751,......
-
Wells Fargo Bank v. Spaulding
...affidavits of service constituted prima facie evidence of valid service pursuant to CPLR 308 (see Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 32 N.Y.S.3d 213 ). However, the appellants affidavit in support of the 111 N.Y.S.3d 121 defendants motion, in which she denied that she was ......
-
Fernandez v. DaimlerChrysler, A.G.
...the court could exercise personal jurisdiction over Daimler (see CPLR 2221[e][2] ; see generally Wells Fargo Bank, N.A. v. Tricarico, 139 A.D.3d 722, 32 N.Y.S.3d 213...