Bank of N.Y. Mellon v. Ziangos

194 A.D.3d 778

149 N.Y.S.3d 145

BANK OF NEW YORK MELLON, etc., respondent,

v.Christos ZIANGOS, etc., et al., defendants,Jeanette Ziangos, appellant.

2018–02515

Index No. 612769/16

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

Submitted—February 22, 2021

May 12, 2021

Christopher Thompson & Associates, P.C., West Islip, N.Y. (Shannon Cody McKinley of counsel), for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, N.Y. (Richard P. Haber of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Jeanette Ziangos appeals from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated December 21, 2017. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court dated November 6, 2017, and an order of reference of the same court dated April 20, 2017, entered upon her failure to appear or answer the complaint, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

ORDERED that the order dated December 21, 2017, is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine the validity of service of process upon the defendant Jeanette Ziangos, and for a new determination thereafter of those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and the order of reference, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

In 2016, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Jeanette Ziangos (hereinafter the defendant). The defendant failed to answer the complaint or otherwise appear in the action. In an order dated April 20, 2017, the Supreme Court granted the plaintiff's unopposed motion, inter alia, for leave to enter a default judgment and for an order of reference. Thereafter, the court issued a judgment of foreclosure and sale dated November 6, 2017, inter alia, directing the sale of the subject property.

On December 1, 2017, the defendant moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and the order of reference, and thereupon pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The Supreme Court, inter alia, denied those branches of the motion without a hearing, and the defendant appeals.

CPLR 5015(a)(4) provides for vacatur of a judgment or order upon the ground of "lack of jurisdiction to render the judgment or order." Where service of process is made upon a natural person pursuant to CPLR 308(2), personal jurisdiction is not acquired unless both the delivery and mailing requirements of that statute have been strictly complied with (see Wells Fargo Bank, N.A. v. Heaven, 176 A.D.3d 761, 762–763, 109 N.Y.S.3d 162 ; Aurora Loan Servs., LLC v. Revivo, 175 A.D.3d 622, 623, 107 N.Y.S.3d 87 ; Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1174, 10 N.Y.S.3d 95 ).

Ordinarily, "[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 ; see JPMorgan Chase Bank, N.A. v. Grinkorn, 172 A.D.3d 1183, 1185, 102 N.Y.S.3d 210 ). " ‘Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing’ " ( American Home Mtge. Acceptance, Inc. v. Lubonty, 188 A.D.3d 767, 769, 136 N.Y.S.3d 130, quoting U.S. Bank, N.A. v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 ).

Here, the process server's affidavit indicated that he served the defendant pursuant to CPLR 308(2), by delivery of the summons and complaint on a particular date and time to a named "co-occupant" at the defendant's actual place of residence, followed by the required mailing to the defendant at the same residence. The affidavit stated that the named "co-occ...