Bank United, FSB v. Verbitsky

167 A.D.3d 833

91 N.Y.S.3d 147

BANK UNITED, FSB, Respondent,

v.Larisa VERBITSKY, Appellant, et al., Defendants.

2015–10512

Index No. 12170/08

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

Argued—June 7, 2018

December 19, 2018

Stern & Stern, Brooklyn, N.Y. (Pamela Smith of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Thomas A. Hooker of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Larisa Verbitsky appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated July 20, 2015. The order, insofar as appealed from, upon a decision of the same court (Nina L. Kurtz, Ct. Atty. Ref.) dated March 11, 2015, made after a hearing to determine the validity of service of process, denied those branches of that defendant's motion which were to vacate and set aside a foreclosure sale held on October 30, 2014, in effect, to vacate a judgment of foreclosure and sale dated February 18, 2014, entered upon her failure to appear or answer the complaint and an order of reference dated February 1, 2010, and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction and for failure to comply with RPAPL 1304, and granted the plaintiff's cross motion pursuant to CPLR 306–b for leave to extend its time to serve her with the summons and complaint to the extent of directing the plaintiff to effectuate service of process upon her within 60 days from the date of the order.

ORDERED that the order dated July 20, 2015, is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Larisa Verbitsky which was to vacate and set aside a foreclosure sale held on October 30, 2014, and, in effect, to vacate a judgment of foreclosure and sale dated February 18, 2014, entered upon her failure to appear or answer the complaint and an order of reference dated February 1, 2010, and substituting therefor a provision granting that branch of her motion; as so modified, the order dated July 20, 2015, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff commenced this action to foreclose a mortgage given by, among others, the defendant Larisa Verbitsky (hereinafter the defendant) by filing a summons and complaint with the Supreme Court, Kings County, on April 17, 2008. The defendant was purportedly served on May 22, 2008, but did not answer the complaint.

By order dated February 1, 2010, the Supreme Court granted the plaintiff's motion for an order of reference, and on February 18, 2014, issued a judgment of foreclosure and sale. After the property was sold at public auction, the defendant moved, inter alia, to vacate and set aside the foreclosure sale, in effect, to vacate the judgment of foreclosure and sale and the order of reference, and to dismiss the action insofar as asserted against her for lack of personal jurisdiction. Following a hearing to determine the validity of service of process, a referee found that the defendant had not been properly served. The plaintiff thereafter cross-moved pursuant to CPLR 306–b for leave to extend its time to serve the defendant with the summons and complaint.

In an order dated July 20, 2015, the Supreme Court, among other things, upon, in effect, confirming the referee's finding that service had not been properly made on the defendant, denied those branches of the defendant's motion which were to vacate and set aside the foreclosure sale, in effect, to vacate the judgment of foreclosure and sale and order of reference, and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction and for failure to comply with RPAPL 1304, and granted the plaintiff's cross motion pursuant to CPLR 306–b for leave to extend its time to serve the defendant with the summons and complaint to the extent of directing the plaintiff to effectuate service of process upon her within 60 days from the date of the order. The defendant appeals.

As a threshold matter, the defendant correctly contends that the Supreme Court should have granted those branches of her motion which were to vacate and set aside the foreclosure sale and, in effect, to vacate the judgment of foreclosure and sale and the order of reference. "[A] court is without power to render a judgment against a party over whom the court lacks jurisdiction. A judgment rendered without jurisdiction is void" ( Berlin v. Sordillo, 179 A.D.2d 717, 719, 578 N.Y.S.2d 617 ; see Diaz v. Perez, 113 A.D.3d 421, 421, 980 N.Y.S.2d 69 ; U.S. Bank, N.A. v. Bernhardt, 88 A.D.3d 871, 872, 931 N.Y.S.2d 266 ). Accordingly, upon, in effect, confirming the referee's finding that the defendant was not properly served, the court was required to vacate and set aside the foreclosure sale, as well as the judgment of foreclosure and sale and order of reference upon which it was based (see Prudence v. Wright, 94 A.D.3d 1073, 1074, 943 N.Y.S.2d 185 ; U.S. Bank, N.A. v. Bernhardt, 88 A.D.3d at 872, 931 N.Y.S.2d 266 ).

However, in light of the plaintiff's timely cross motion pursuant to CPLR 306–b (see U.S. Bank N.A. v. Saintus, 153 A.D.3d 1380, 1382, 61 N.Y.S.3d 315 ), the...