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

194 A.D.3d 792

149 N.Y.S.3d 131

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

v.Anthony RAHMANAN, appellant, et al., defendants.

2019–02261

Index No. 13737/13

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

Argued—March 2, 2021

May 12, 2021

Ronald D. Weiss, P.C., Melville, N.Y. (Ryan Blitz of counsel), for appellant.

Hinshaw & Culbertson LLP, New York, N.Y. (Fernando C. Rivera–Maissonet and Schuyler B. Kraus of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Anthony Rahmanan appeals from a judgment of foreclosure and sale of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered January 2, 2019. The judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court entered January 2, 2019, granting the plaintiff's motion, inter alia, for leave to enter a judgment of foreclosure and sale and to confirm a referee's report, and denying, without a hearing, those branches of that defendant's cross motion which were pursuant to CPLR 5015(a) to vacate an order of reference of the same court (Thomas A. Adams, J.) entered May 9, 2016, upon his default in appearing or answering the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, directed the sale of the subject property. The notice of appeal from the order entered January 2, 2019, is deemed to be a notice of appeal from the judgment of foreclosure and sale (see CPLR 5512[a] ).

ORDERED that the judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

In September 2005, the defendant Anthony Rahmanan (hereinafter the defendant) borrowed $367,400 from the plaintiff's predecessor-in-interest. The indebtedness was evidenced by a note executed by the defendant. The note was secured by a mortgage encumbering certain real property in Oceanside. In July 2009, the defendant defaulted on his payment obligations under the note and mortgage.

In November 2013, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. On December 10, 2013, the defendant allegedly was served with the summons and complaint, and other documents, pursuant to CPLR 308(1), but failed to appear in the action or interpose a timely answer. Thereafter, the plaintiff moved for an order of reference. In an order entered May 9, 2016, the Supreme Court, inter alia, referred the matter to a referee to compute the amount due to the plaintiff. The plaintiff subsequently moved, among other things, to confirm the referee's report and for leave to enter a judgment of foreclosure and sale. The defendant opposed the motion and cross-moved, inter alia, to vacate the order of reference and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In an order entered January 2, 2019, the court granted the plaintiff's motion and denied the defendant's cross motion. In a judgment of foreclosure and sale entered on the same date, the court, among other things, directed the sale of the subject property. The defendant appeals.

Pursuant to CPLR 5015(a)(4), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person ... upon the ground of ... lack of jurisdiction to render the judgment or order." Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v. Murphy, 127 A.D.3d 1167, 1174, 10 N.Y.S.3d 95 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 896–897, 964 N.Y.S.2d 543 ). The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (see Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543 ; Krisilas v. Mount Sinai Hosp., 63 A.D.3d 887, 889, 882 N.Y.S.2d 186 ). Pursuant to CPLR 308(1), personal service may be made "by delivering the summons within the state to the person to be served."

"[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" ( Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ; see U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 ). " ‘Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits’ " ( BAC Home Loans Servicing, LP v. Carrasco, 160 A.D.3d 688, 689, 71 N.Y.S.3d 366, quoting Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682 [internal quotation marks omitted]). "The sworn denial of receipt of service must be a ‘detailed and specific contradiction’ of the allegations in the process server's affidavit" ( Rodriguez v. 60 Graham, LLC, 173 A.D.3d 1095, 1095–1096, 100 N.Y.S.3d 555, quoting Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92 ).

Here, the process server's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(1). In opposition to the plaintiff's motion and in support of his cross motion the defendant submitted, inter alia, his own affidavit, his driver license issued in 2003, and an undated photograph. Contrary to the defendant's contention, this evidence was insufficient to rebut the presumption of proper service created by the process server's affidavit (see Indymac Fed. Bank, FSB v. Hyman, 74 A.D.3d 751, 901 N.Y.S.2d 545 ; cf. Rosemark Contractors, Inc. v. Ness, 149 A.D.3d 1115, 1117, 53 N.Y.S.3d 188 ). Specifically, the affidavit of service indicated that on December 10, 2013, the summons and complaint and other documents were personally delivered to the defendant at an address in Kew Gardens. The...