Wells Fargo Bank, Nat'l Ass'n v. Boakye-Yiadom

• Docket Number: 2019–14294,Index No. 67753/14
• Decision Date: 22 February 2023
• Citation: 213 A.D.3d 976,185 N.Y.S.3d 191
• Parties: WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., appellant, v. Kwame BOAKYE–YIADOM, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

213 A.D.3d 976
185 N.Y.S.3d 191

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., appellant,
v.
Kwame BOAKYE–YIADOM, respondent, et al., defendants.

2019–14294
Index No. 67753/14

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

Submitted—November 14, 2022
February 22, 2023

185 N.Y.S.3d 192

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Jason W. Creech of counsel), for appellant.

FRANCESCA E. CONNOLLY, J.P., LINDA CHRISTOPHER, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

213 A.D.3d 976

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated April 12, 2017. The order granted the motion of the defendant Kwame Boakye–Yiadom pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and denied the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve that defendant and deem service of the summons and complaint on that defendant timely, nunc pro tunc.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the motion of the defendant Kwame Boakye–Yiadom pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him is denied, and the plaintiff's motion pursuant to CPLR 306–b to extend the time to serve that defendant and deem service of the summons

213 A.D.3d 977

and complaint on that defendant timely, nunc pro tunc, is granted.

On September 23, 2014, the plaintiff commenced this action to foreclose a mortgage executed by the defendant Kwame Boakye–Yiadom (hereinafter the defendant) encumbering certain real property located in Manorville. In his answer, the defendant disputed proper service of process and raised the affirmative defense of lack of personal jurisdiction. The defendant then moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him, inter alia, on the ground of lack of personal jurisdiction based on improper service of process.

The plaintiff opposed the defendant's motion and cross-moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant. Subsequently, the plaintiff moved pursuant to CPLR 306–b to extend the time to serve the defendant and deem service of the summons and complaint on the defendant timely, nunc pro tunc.

The Supreme Court denied the plaintiff's motion pursuant to CPLR 306–b and granted the defendant's motion to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction due to untimely service of process. The court determined that the interest of justice did not warrant granting the plaintiff's motion because...