Deutsche Bank Nat'l Trust Co. v. Martinez

211 A.D.3d 909

180 N.Y.S.3d 577

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant,

v.Jose M. MARTINEZ, respondent, et al., defendants.

2019–11260

Index No. 31234/13

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

Argued—October 21, 2022

December 21, 2022

Locke Lord, LLP, New York, NY (Aileen E. McTiernan and Shawn A. Brenhouse of counsel), for appellant.

Jose M. Martinez, North Miami, Florida, respondent pro se.

CHERYL E. CHAMBERS, J.P., PAUL WOOTEN, JOSEPH A. ZAYAS, LILLIAN WAN, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated August 26, 2019. The order, in effect, denied the plaintiff's application pursuant to CPLR 306–b to extend the time to serve the defendant Jose M. Martinez with the summons and complaint, granted that defendant's motion to confirm a referee's report dated March 26, 2019, and, in effect, granted that defendant's separate motion pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale dated March 28, 2017, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as, in effect, denied the plaintiff's application pursuant to CPLR 306–b to extend the time to serve the defendant Jose M. Martinez with the summons and complaint is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Jose M. Martinez.

On September 2, 2005, the defendant Jose M. Martinez (hereinafter the defendant) executed a note in favor of nonparty WMC Mortgage Corp. in the principal sum of $311,200, which was secured by a mortgage encumbering certain real property in Garnerville (hereinafter the property). In March 2013, the plaintiff, as the alleged holder of the note and mortgage, commenced this action to foreclose the mortgage against, among others, the defendant. According to an affidavit of service, the plaintiff's process server purportedly effectuated service of the summons and complaint on the defendant on March 18, 2013, pursuant to CPLR 308(2) by service upon a person of suitable age and discretion at the property. The defendant failed to answer the complaint. In an order dated October 26, 2016, the Supreme Court, inter alia, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant and for an order of reference. On March 28, 2017, the court issued a judgment of foreclosure and sale.

On May 4, 2017, the defendant moved pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In a supporting affidavit, the defendant averred that he had moved from New York to Florida in July 2011, and remained a resident of Florida through the purported date of service in March 2013. In support of the motion, the defendant submitted, inter alia, (1) a declaration of domicile sworn to July 13, 2012, wherein the defendant attested that he had changed his domicile to Florida in July 2011, and (2) a letter from the Office of the New York State Comptroller dated May 4, 2012, confirming the defendant's change of address to Florida. In an order dated April 24, 2018, the Supreme Court directed a hearing to determine the validity of service of process on the defendant. The hearing commenced on May 22, 2018, and concluded on September 19, 2018.

On October 15, 2018, the plaintiff moved, for the first time, pursuant to CPLR 306–b for an extension of time to serve the defendant. In an order dated February 19, 2019, the Supreme Court denied the plaintiff's motion. The plaintiff did not appeal from that order.

In a referee's report dated March 26, 2019, the referee who presided over the hearing found that the defendant was not validly served with the summons and complaint. On April 17, 2019, the defendant moved to confirm the referee's report. In an opposing affirmation dated June 5, 2019, the plaintiff sought an extension of time to serve the defendant pursuant to CPLR 306–b. In an order dated August 26, 2019, the Supreme Court (1) granted the defendant's motion to confirm the referee's report, (2) in effect, denied the plaintiff's application pursuant to CPLR 306–b for an extension of time to serve the defendant, and (3) in effect, granted the defendant's prior motion pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The plaintiff appeals.

Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306–b ). "If service is not made upon a defendant within the time provided in [ CPLR 306–b ], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service" ( id. § 306–b ). To establish "good cause," a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). Here, the plaintiff failed to offer any evidence demonstrating that it exercised reasonably diligent efforts in attempting to...