Wells Fargo Bank v. Burshstein
| Decision Date | 29 May 2019 |
| Docket Number | Index No. 29704/09,2017–04685 |
| Citation | 102 N.Y.S.3d 622,172 A.D.3d 1437 |
| Parties | WELLS FARGO BANK, NA, Respondent, v. Gene BURSHSTEIN, Appellant, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
172 A.D.3d 1437
102 N.Y.S.3d 622
WELLS FARGO BANK, NA, Respondent,
v.
Gene BURSHSTEIN, Appellant, et al., Defendants.
2017–04685
Index No. 29704/09
Supreme Court, Appellate Division, Second Department, New York.
Argued—March 14, 2019
May 29, 2019
Cooper & Paroff, P.C., Kew Gardens, N.Y. (Henry M. Graham and Allen Abraham of counsel), for appellant.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Christian Fletcher of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Gene Burshstein appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated January 30, 2017. The order, insofar as appealed from, denied, without a hearing, those branches of that defendant's motion which were to vacate an order of reference of the same court dated June 18, 2014, and a judgment of foreclosure and sale of the same court dated November 20, 2015, and, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 306–b to deem service of the summons and complaint upon that defendant on April 22, 2010, timely and valid, nunc pro tunc.
ORDERED that the order dated January 30, 2017, is affirmed insofar as appealed from, with costs.
On November 23, 2009, the plaintiff commenced this action against the defendant Gene Burshstein (hereinafter the defendant), among others, to foreclose a mortgage on property located at 2127 Flatbush Avenue in Brooklyn. One affidavit of service indicated that the defendant was served with copies of the summons and complaint pursuant to CPLR 308(4) on December 2, 2009, at a specified address on Gaylord Drive South in Brooklyn. After the plaintiff learned that the defendant's last known address was at a different location, i.e., a specified address on National Drive in Brooklyn (hereinafter the National Drive address), service was attempted again. A second affidavit of
service indicated that the defendant was served pursuant to CPLR 308(4) at the National Drive address on April 22, 2010, more than 120 days after commencement of the action (see CPLR 306–b ). The defendant failed to answer the complaint. In an order of reference dated June 18, 2014, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment and referred the matter to a referee to compute the amount due the plaintiff on the mortgage loan (hereinafter the order of reference). Thereafter, the court issued a judgment of foreclosure and sale dated November 20, 2015.
In September 2016, the defendant moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale, and, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The plaintiff cross-moved, inter alia, to deem service on the defendant on April 22, 2010, timely and valid, nunc pro...
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