Opinion
2017–12980 Index No. 26506/08
10-21-2020
FEDERAL NATIONAL MORTGAGE ASSOCIATION, respondent, v. Donald J. CASTOLDI, appellant, et al., defendant.
Scott A. Rosenberg, P.C., Garden City Park, NY, for appellant.
Scott A. Rosenberg, P.C., Garden City Park, NY, for appellant.
ALAN D. SCHEINKMAN, P.J., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Donald J. Castoldi appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated September 28, 2017. 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 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Donald J. Castoldi which was pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale entered November 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant Donald J. Castoldi was properly served with process, and a new determination thereafter of that branch of his motion which was pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale entered November 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
The plaintiff's predecessor in interest commenced this action to foreclose a mortgage in 2008 against, among others, the defendant Donald J. Castoldi. Eight years later, in an order dated May 5, 2016, Federal National Mortgage Association was substituted as plaintiff and was awarded a default judgment against Castoldi. A judgment of foreclosure and sale was entered on November 23, 2016. In June 2017, Castoldi moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In an order dated September 28, 2017, the Supreme Court denied the motion. Castoldi appeals.
We agree with the Supreme Court's determination denying that branch of Castoldi's motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. That branch of the motion was untimely because it was made after entry of the judgment of foreclosure and sale (see Ditech Fin., LLC v. Rizzo, 175 A.D.3d 1243, 1245, 108 N.Y.S.3d 156 ; P.B. # 7, LLC v. 231 Fourth Ave. Lyceum, LLC, 167 A.D.3d 1028, 1031, 91 N.Y.S.3d 164 ).
However, we agree with Castoldi that the Supreme Court should not have denied that branch of his motion which was pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale entered November 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction without first conducting a hearing to determine the validity of service of process pursuant to CPLR 308(4).
"It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action" ( Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479 ; see HSBC Bank USA, N.A. v. Assouline, 177 A.D.3d 603, 604, 110 N.Y.S.3d 739 ; Wells Fargo Bank, N.A. v. Decesare, 154 A.D.3d 717, 62 N.Y.S.3d 446 ). 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 Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 128 N.Y.S.3d 574 ; Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308 ; Wells Fargo Bank, N.A. v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 ). A defendant moving to vacate a judgment pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service (see Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 128 N.Y.S.3d 574 ; Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 988, 90 N.Y.S.3d 308 ). 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 Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d 776, 776–777, 51 N.Y.S.3d 523 ; Machovec v. Svoboda, 120 A.D.3d 772, 773, 992 N.Y.S.2d 279 ). If the presumption is rebutted, a hearing is necessary, at which the plaintiff must establish jurisdiction by a preponderance of the evidence (see Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d at 777, 51 N.Y.S.3d 523 ; Machovec v. Svoboda, 120 A.D.3d at 773, 992 N.Y.S.2d 279 ).
Here, the affidavit of service contained sworn allegations reciting that the process server served Castoldi with the summons and complaint, along with the RPAPL 1303 notice, at Castoldi's residence at 2:30 p.m. on July 19, 2008, by affixing a true copy of each to the door of the premises. The process server averred that he had been unable, "with due diligence," to find the defendant or a person of suitable age and discretion at the home, having "confirmed with the neighbor" and having called there on July 15, 2008, at 7:00 p.m., on July 16, 2008, at 3:30 p.m., and on July 18, 2008, at 7:15 a.m. The process server further averred that he also mailed a copy by first class mail to Castoldi at the residence on July 30, 2008.
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" ( CPLR 308[4] ; see Coley v. Gonzalez, 170 A.D.3d 1107, 1108, 94 N.Y.S.3d 873 ; Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462 ). "The requirement of due diligence must be strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4)" ( Coley v. Gonzalez, 170 A.D.3d at 1108, 94 N.Y.S.3d 873 [internal quotation marks omitted]; see Serraro v. Staropoli, 94 A.D.3d 1083, 1084, 943 N.Y.S.2d 201 ; McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759 ). "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 at 653, 854 N.Y.S.2d 759 ; see Coley v. Gonzalez, 170 A.D.3d at 1108, 94 N.Y.S.3d 873 ; Serraro v. Staropoli, 94 A.D.3d at 1084, 943 N.Y.S.2d 201 ).
In support of that branch of his motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale entered November 23, 2016, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, Castoldi raised issues of fact as to whether the process server exercised due diligence in attempting to effectuate service pursuant to CPLR 308(1) or (2) before resorting to the "affix and mail" method pursuant to CPLR 308(4) (see HSBC Bank USA, N.A. v. Assouline, 177 A.D.3d at 605, 110 N.Y.S.3d 739 ; Coley v. Gonzalez, 170 A.D.3d at 1108, 94 N.Y.S.3d 873 ; Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d at 989, 90 N.Y.S.3d 308 ; Sinay v. Schwartzman, 148 A.D.3d 1068, 1070, 50 N.Y.S.3d 141 ; Deutsche Bank Natl. Trust Co. v. O'King, 148 A.D.3d at 777–778, 51 N.Y.S.3d 523 ; Machovec v. Svoboda, 120 A.D.3d at 774, 992 N.Y.S.2d 279 ; Deutsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630, 631–632, 949 N.Y.S.2d 393 ). Accordingly, a hearing to determine the validity of service of process on Castoldi is warranted.
Castoldi's remaining contention is without merit.
SCHEINKMAN, P.J., LASALLE, BRATHWAITE NELSON and IANNACCI, JJ., concur.