U.S. Bank Nat'l Ass'n v. Westchester Cnty. Pub. Adm'r ex rel. Hack

198 A.D.3d 1001

156 N.Y.S.3d 375

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.WESTCHESTER COUNTY PUBLIC ADMINISTRATOR, ON BEHALF OF Khartoon HACK, et al., defendants,Mohamed Hack, et al., appellants.

2018–05731, 2018–05732

Index No. 20222/08

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

Argued—September 14, 2021

October 27, 2021

Kenneth J. Glassman, New York, NY, for appellants.

Gross Polowy (Reed Smith LLP, New York, N.Y. [Andrew B. Messite and James Faller ], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack appeal from (1) an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), entered March 12, 2018, and (2) an order and judgment of foreclosure and sale (one paper) of the same court, also entered March 12, 2018. The order, insofar as appealed from, denied those defendants’ motion (a) pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale of the same court dated March 12, 2015, insofar as it is against them, issued upon their failure to appear or answer the complaint, (b) pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and (c) pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned. The order and judgment of foreclosure and sale entered March 12, 2018, insofar as appealed from, is in favor of the plaintiff and against those defendants, directing the sale of the subject property.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale entered March 12, 2018, is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned is granted, the judgment of foreclosure and sale dated March 12, 2015, insofar as it is against those defendants is vacated, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the defendants Mohamed Hack, Patricia Ann Hack, and Tony Hack.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale entered March 12, 2018 (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale entered March 12, 2018 (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In September 2008, the plaintiff commenced this action against, among others, Mohamed Hack, Patricia Ann Hack, Tony Hack (hereinafter collectively the defendants), and Khartoon Hack (hereinafter the decedent), who were members of Patricia's family and resided with her at the mortgaged premises. It is not disputed that the defendants defaulted in appearing or answering the complaint, and as a consequence, the plaintiff, on March 12, 2015, obtained a judgment of foreclosure and sale against them. Sale of the property, however, was delayed for a variety of reasons, including the discovery that the decedent had died the preceding year.

In July 2017, the defendants moved (1) pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale insofar as it is against them, issued upon their failure to appear or answer the complaint, (2) pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, and (3) pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned.

The plaintiff opposed the motion, and cross-moved, in effect, for leave to amend the judgment of foreclosure and sale by substituting the Public Administrator and an heir of the decedent as parties. Those representatives of the decedent are not parties to this appeal.

In an order entered March 12, 2018, the Supreme Court denied the defendants’ motion and granted the plaintiff's cross motion, and in accordance therewith, entered an order and judgment of foreclosure and sale on March 12, 2018, against the defendants and the decedent's representatives, vacated the prior judgment of foreclosure and sale dated March 12, 2015, insofar as it was against the decedent, and directed the sale of the premises. The defendants appeal.

" ‘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’ " ( HSBC Bank USA, N.A. v. Assouline, 177 A.D.3d 603, 604, 110 N.Y.S.3d 739, quoting Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308 ). "A sworn denial of receipt of service containing detailed and specific contradiction of the allegations in the process server's affidavit may defeat the presumption of proper service" ( Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 1040, 128 N.Y.S.3d 574 [internal quotation marks omitted]; see HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ). However, "bare and unsubstantiated denials are insufficient to rebut the presumption of service" ( Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 988, 90 N.Y.S.3d 308 [internal quotation marks omitted]; cf. Citimortgage, Inc. v. Behrman, 189 A.D.3d 1159, 1160, 139 N.Y.S.3d 230 ). "A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing" ( GMAC Mtge., LLC v. Eberle, 172 A.D.3d 822, 823–824, 100 N.Y.S.3d 367 ; see U.S. Bank N.A. v. Cherubin, 141 A.D.3d 514, 516, 36 N.Y.S.3d 154 ; Wells Fargo Bank, N.A. v. Kohn, 137 A.D.3d 897, 898, 28 N.Y.S.3d 80 ). " ‘Further, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect’ " ( GMAC Mtge., LLC v. Eberle, 172 A.D.3d at 823, 100 N.Y.S.3d 367, quoting U.S. Bank N.A. v. Cherubin, 141 A.D.3d at 516, 36 N.Y.S.3d 154 ).

Here, the defendants’ submissions in support of their motion, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale dated March 12, 2015, insofar as asserted against them, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction, were insufficient to defeat the presumption of proper service created by the affidavits of the plaintiff's process server demonstrating that personal service was made upon Patricia (see id. § 308[1]), and that she accepted service on behalf of Mohamed and Tony (see id. § 308[2]). Contrary to the defendants’ contention, the claimed discrepancies between Patricia's physical appearance and the description of the person served contained in the process server's affidavit were too minor and lacked any substantiation to warrant a hearing. Further, the defendants’ remaining contentions with respect to the propriety of service of process are without merit.

However, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against them as abandoned, and vacated the judgment of foreclosure and sale dated March 12, 2015, insofar as it is against the defendants. On...