HSBC Bank USA, Nat'l Ass'n v. Assouline

177 A.D.3d 603

110 N.Y.S.3d 739

HSBC BANK USA, NATIONAL ASSOCIATION, etc., Respondent,

v.Solange ASSOULINE, Appellant, et al., Defendant.

2016–10292

Index No. 6327/09

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

Argued - June 11, 2019

November 6, 2019

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Solange Assouline appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered August 12, 2016. 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 entered November 18, 2014, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether the defendant Solange Assouline was properly served pursuant to CPLR 308(4), and, thereafter, a new determination of those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered November 18, 2014, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

On April 2, 2009, the plaintiff commenced this action to foreclose a mortgage encumbering residential real property owned by the defendant Solange Assouline (hereinafter the defendant). In an order dated September 23, 2009 (hereinafter the order of reference), the Supreme Court, inter alia, granted the plaintiff's motion for leave to enter a default judgment and for an order of reference. On May 28, 2010, the court entered a judgment of foreclosure and sale. However, after obtaining that judgment, the plaintiff did not move forward with the foreclosure. By order entered May 30, 2014, the court granted the plaintiff's unopposed motion to vacate the order of reference and the judgment of foreclosure and sale. An inquest was subsequently held on September 24, 2014, and on November 18, 2014, the court entered a judgment of foreclosure and sale, inter alia, directing the sale of the subject property.

By order to show cause dated March 23, 2016, the defendant moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered November 18, 2014, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. In an order entered August 12, 2016, the Supreme Court denied the defendant's motion. The defendant appeals.

"The burden of proving that personal jurisdiction was acquired over a defendant rests with the plaintiff" ( Wells Fargo Bank, N.A. v. Decesare, 154 A.D.3d 717, 717, 62 N.Y.S.3d 446 ). " ‘Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service’ " ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308, quoting Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). "To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service" ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 988, 90 N.Y.S.3d 308 ). " ‘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’ " ( id., quoting U.S. Bank, N.A. v. Tauber, 140 A.D.3d 1154, 1155, 36 N.Y.S.3d 144 ).

Here, the plaintiff's affidavit of service constituted prima facie evidence of proper service upon the defendant (see HSBC Bank USA v. Desrouilleres, 128 A.D.3d 1013, 1014, 11 N.Y.S.3d 93 ). The plaintiff's process server, Gary Cardi, averred that he made unsuccessful attempts to serve the defendant at her home on April 3, 2009, at 4:30 p.m. and April 4, 2009, at 6:45 a.m. Cardi averred that, on April 4, 2009, at 7:10 p.m., he affixed a copy of the summons and complaint to the defendant's door. A separate affidavit of service was executed for the purpose of establishing that the summons and complaint were mailed to the defendant at the subject address.

The defendant rebutted the process server's affidavit of service through her specific and detailed affidavit, in which she averred that "[t]he [a]ffidavit of service falsely states that a copy of the Summons and Complaint was affixed to my door." The defendant's affidavit set out in great detail that the defendant was at home each time that the process server purportedly attempted service, as she was recuperating from a kidney transplant. The defendant averred that April 3, 2009, which happened to be her birthday, was a Friday, and that as an observant Jew she did not leave her home. The defendant submitted a Sabbath calendar printout showing that the sun did not set until 8:04 p.m. on April 4, 2009, approximately one hour after the process server purportedly affixed the summons and complaint to her door. The defendant averred that she never heard anyone knock at her door or ring her doorbell and that, despite various medical problems, she has no issues with her hearing. The defendant averred that her daughter came to pick her up for dinner at 8:30 p.m. on April 4, 2009, and that upon leaving her home, she did not see any documents affixed to her door. The foregoing detailed averments were sufficient to rebut the process server's affidavit and to warrant a hearing on the issue of whether service was properly made (see Sinay v. Schwartzman, 148 A.D.3d 1068, 1070, 50 N.Y.S.3d 141 ; Citibank, N.A. v. Balsamo, 144 A.D.3d 964, 965, 41 N.Y.S.3d 744 ; Velez v. Forcelli, 125 A.D.3d 643, 644, 3 N.Y.S.3d 84 ; Saxon Mtge. Servs., Inc. v. Bell, 63 A.D.3d 1029, 880 N.Y.S.2d 573 ).

Although the defendant did not deny having actual notice of the action, "[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents " ( Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389 [emphasis added]; see Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253 ; Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161 ). "Service is only effective ... when it is made pursuant to the appropriate method authorized by the CPLR. Actual notice alone will not sustain the service or subject a person to the court's jurisdiction [when there has not been compliance with] prescribed conditions of service" ( Markoff v. South Nassau Community Hosp., 61 N.Y.2d at 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253 [citations omitted] ).

Contrary to the plaintiff's contention, the defendant did not make an informal appearance in this action so as to waive her objection to personal jurisdiction (see Cadlerock Joint Venture, L.P. v. Kierstedt, 119 A.D.3d 627, 628, 990 N.Y.S.2d 522 ). Correspondence from the defendant to the plaintiff's then attorney, Steven J. Baum, P.C., dated June 9, 2009, which did not reference this action but merely discussed the defendant's desire for a loan modification, did not constitute an informal appearance (see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1167, 912 N.Y.S.2d 285 ; see also Whiteside v. Manfredi, 132 A.D.3d 851, 852, 18 N.Y.S.3d 404 ). Similarly, correspondence on behalf of the defendant from the law office of Elliot Elo & Associates, P.C., to the plaintiff's servicer, dated March 31, 2014, which did not reference this action and requested an opportunity to discuss settlement "prior to litigation," did not constitute an informal appearance. The fact that the letter requested to discuss settlement "prior to litigation" would imply that the defendant's attorney was not aware of this action. Accordingly, the defendant did not waive her objection to personal jurisdiction.

Our concurring colleague states: "I agree with my colleagues that where, as here, a defendant challenges the service of the summons and complaint with particularized facts in an affidavit, the better practice for the Supreme Court is to conduct an immediate hearing to timely determine the credibility of the process servers and the defendant as to whether she or he was properly served and whether the court has personal jurisdiction over that defendant" (concurrence at 1 [emphasis added] ). We clarify that we make no pronouncement as to any "better practice" for trial courts deciding whether personal jurisdiction was acquired over a defendant.

The plaintiff's remaining contention is without merit.

Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether the defendant was properly served pursuant to CPLR 308(4), and, thereafter, a new determination of those branches of the defendant's motion which were 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 her for lack of personal jurisdiction.

LEVENTHAL, J.P., BARROS and CONNOLLY, JJ., concur.

MALTESE, J., concurs, and votes to reverse the order insofar as appealed from, on the law, and to remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether the defendant Solange Assouline was properly served pursuant to CPLR 308(4), and, thereafter, a new determination of those branches of that defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered November 18, 2014, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction, with the following memorandum:

I agree with my colleagues that...