Wilmington Sav. Fund Soc'y, FSB v. Zabrowsky

212 A.D.3d 866

183 N.Y.S.3d 480

WILMINGTON SAVINGS FUND SOCIETY, FSB, etc., respondent,

v.Eliezer ZABROWSKY, et al., appellants, et al., defendants.

2018–07226, 2018–07227, 2018–07229

Index No. 30693/16

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

Submitted—November 7, 2022

January 25, 2023

Solomon Zabrowsky, New York, NY, for appellants.

Adam Leitman Bailey, P.C., New York, NY (Jackie Halpern Weinstein of counsel), for respondent.

MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Eliezer Zabrowsky and Goldie Zabrowsky appeal from (1) an order of the Supreme Court, Rockland County (Thomas E. Walsh, II, J.), dated March 20, 2017, (2) an order of the same court dated July 27, 2017, and (3) an order and judgment of foreclosure and sale (one paper) of the same court dated May 10, 2018. The order dated March 20, 2017, insofar as appealed from, denied the cross motion of those defendants, in effect, pursuant to CPLR 5015(a)(4) to vacate their default in answering the complaint, and pursuant to CPLR 3012(d) for leave to serve and file a late answer. The order dated July 27, 2017, insofar as appealed from, granted those branches of the plaintiff's motion which were for leave to enter a default judgment against those defendants and for an order of reference. The order and judgment of foreclosure and sale granted the plaintiff's motion for a judgment of foreclosure and sale, confirmed a referee's report, and directed the sale of the subject property.

ORDERED that the appeals from the orders dated March 20, 2017, and July 27, 2017, are dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeals from the orders dated March 20, 2017, and July 27, 2017, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (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 appeals from those orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ).

In March 2016, the plaintiff commenced this action to foreclose a mortgage encumbering residential real property owned by the defendants Eliezer Zabrowsky and Goldie Zabrowsky (hereinafter together the defendants). The defendants did not serve or file an answer, and the plaintiff moved, inter alia, for an order of reference upon their default. The defendants opposed the motion and cross-moved, in effect, pursuant to CPLR 5015(a)(4) to vacate their default in answering the complaint, and pursuant to CPLR 3012(d) for leave to serve and file a late answer. In an order dated March 20, 2017, the Supreme Court, among other things, denied the defendants’ cross motion. The court found that the defendants failed to proffer a reasonable excuse for the delay in seeking to file an answer, and it did not reach the jurisdictional issue. Thereafter, the plaintiff again moved, inter alia, for leave to enter a default judgment against the defendants and for an order of reference. In an order dated July 27, 2017, the court granted those branches of the plaintiff's motion. The plaintiff subsequently moved for a judgment of foreclosure and sale. In an order and judgment of foreclosure and sale dated May 10, 2018, the court granted the plaintiff's motion, confirmed the referee's report, and directed the sale of the subject property. The defendants appeal.

Generally, a defendant seeking to vacate a default in answering and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense (see id.; Windward Bora, LLC v. Lodico, 206 A.D.3d 1038, 1039, 168 N.Y.S.3d 887 ; Gambino v. Deutsche Bank Natl. Trust Co., 181 A.D.3d 565, 566, 117 N.Y.S.3d 594 ). However, where, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to first resolve the jurisdictional question before considering whether it is appropriate to grant discretionary relief (see Rattner v. Fessler, 202 A.D.3d 1011, 1015, 163 N.Y.S.3d 575 ; U.S. Bank N.A. v. Giraldo, 192 A.D.3d 720, 721, 139 N.Y.S.3d 561 ). Here, the Supreme Court erred in denying the defendants’ cross motion, in effect, pursuant to CPLR 5015(a)(4) to vacate their default in answering the complaint, and pursuant to CPLR 3012(d) for leave to serve and file a late answer on the ground that the defendants had not offered a reasonable excuse for their delay in moving to serve a late answer, without first resolving the jurisdictional issue that was raised. However, since the parties litigated the merits of that issue before the court and fully briefed the issue of jurisdiction to this Court, we consider the merits of the issue in the interest of judicial economy, rather than remitting the matter to the Supreme Court for it to do so (see Kamil El–Deiry & Assoc. CPA, PLLC v. Excellent Home Care Servs., LLC, 208 A.D.3d 1170, 1171, 175 N.Y.S.3d 79 ; Deutsche Bank Natl. Trust Co. v. Gambino, 153 A.D.3d 1232, 1233, 61 N.Y.S.3d 299 ).

"Service of process must be made in strict compliance with the statutory ‘methods for effecting personal service upon a natural person’ pursuant to CPLR 308" ( Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462, quoting Macchia v. Russo, 67 N.Y.2d 592, 594, 505 N.Y.S.2d 591, 496 N.E.2d 680 ; see Grand Pac. Mtge. Corp. v. Pietranski, 175 A.D.3d 1503, 1504–1505, 109 N.Y.S.3d 158 ). Here, the plaintiff purportedly served the defendants by the "affix and mail" method pursuant to CPLR 308(4). Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with "due diligence" ( id. § 308[4] ; see Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d 988, 990, 134 N.Y.S.3d 87 ; Coley v. Gonzalez, 170 A.D.3d 1107, 1108, 94 N.Y.S.3d 873 ). "What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality" ( McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 ; see Barnes v. City of New York, 51 N.Y.2d 906, 907, 434 N.Y.S.2d 991, 415 N.E.2d 979 ; Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d at 990, 134 N.Y.S.3d 87 ).

Ordinarily, a process server's sworn affidavit of service attesting to the proper delivery of a summons to a defendant constitutes prima facie evidence of service in the manner described (see Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d at 989, 134 N.Y.S.3d 87 ; Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308 ). A defendant moving to vacate a default pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service (see Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d at 989, 134 N.Y.S.3d 87 ; Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 1040, 128 N.Y.S.3d 574 ). A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service (see Federal Natl. Mtge. Assn. v. Castoldi, 187 A.D.3d at 989, 134 N.Y.S.3d 87 ; Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776–777, 51 N.Y.S.3d 523 ). If the presumption is rebutted, a hearing is necessary,...