FEDERAL NATIONAL MORTGAGE ASSOCIATION v. Alberto Morales, et al., Defendants. (2019)

Order, Supreme Court, New York County (Judith M. McMahon, J.), entered on or about December 1, 2017, which, to the extent appealed from as limited by the briefs, dismissed the complaint, unanimously affirmed, with costs.

Plaintiff never objected to or preserved for appeal that portion of defendants' order to show cause seeking consolidation of the 2009 and 2014 foreclosure actions, and even requested such relief itself.  Upon consideration of this issue, the dismissal of the 2014 foreclosure action was permissible since the 2009 foreclosure action had been withdrawn by stipulation, the actions had common questions of law and fact, and plaintiff did not demonstrate a clear abuse of discretion or prejudice to a substantial right (see Geneva Temps, Inc. v. New World Communities, Inc., 24 A.D.3d 332, 334, 806 N.Y.S.2d 519 [1st Dept. 2005]).  Contrary to plaintiff's contention, it was not improper for the Justice presiding over the 2009 foreclosure action to dismiss both actions, as there was no prior ruling that was a consideration in this case (Gee Tai Chong Realty Corp. v. GA Ins. Co. of N.Y., 283 A.D.2d 295, 296, 727 N.Y.S.2d 388 [1st Dept. 2001]; cf. Rhymer v. New York City Tr. Auth., 2 A.D.3d 350, 768 N.Y.S.2d 814 [1st Dept. 2003]; Matter of Kamara v. East Riv. Landing, 132 AD3d 510, 18 N.Y.S.3d 23 [1st Dept. 2015]).

The affidavits of plaintiff's process server describing the person who accepted service of the summons, complaint, and notice of pendency constituted prima facie evidence of proper service (see NYCTL 2012–A Trust v. Colbert, 146 A.D.3d 482, 483, 45 N.Y.S.3d 408 [1st Dept. 2017]).  Defendants' sworn affidavits, attesting that they did not reside at the premises purportedly served at the time of service, and that they did not receive notice of publication, were sufficient to rebut the presumption of proper service (Johnson v. Deas, 32 A.D.3d 253, 254, 819 N.Y.S.2d 751 [1st Dept. 2006]).  Thus, a traverse hearing was required (see NYCTL 1998–1 Trust & Bank of N.Y. v. Rabinowitz, 7 A.D.3d 459, 460, 777 N.Y.S.2d 483 [1st Dept. 2004]).  Plaintiff failed to produce the process server, the process server's log book, or other opposing evidence at the hearing.  Thus its burden to prove that process was effectuated was not met (see Woods v. M.B.D. Community Hous. Corp., 90 A.D.3d 430, 430, 933 N.Y.S.2d 669 [1st Dept. 2011]).