HSBC BANK USA NATIONAL ASSOCIATION AS TRUSTEE UNDER POOLING AND SERVICING AGREEMENT DATED AS OF NOVEMBER 2006 FREMONT HOME LOAN TRUST 2006 v. Robert Russo et al., Defendants. (2022)

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered June 23, 2015, which granted defendant Thomas Russo's motion to vacate the judgment of foreclosure and dismissed the action without prejudice based on lack of personal jurisdiction, unanimously affirmed, without costs.

Defendant's affidavit sufficiently rebutted the presumption of service created by the affidavit of service of plaintiff's process server, as defendant averred that while the affidavit identified his address as the first floor of the subject property, he actually resided on the second floor, as the first floor was rented to a tenant, that 15 years earlier his hair had turned white, and that he was 5’8”, and not 5’11” (see NYCTL 2012–A Trust v. Colbert, 146 A.D.3d 482, 483, 45 N.Y.S.3d 408 [1st Dept. 2017]).  Defendant also offered his driver's license, which showed that his hair was white, not brown or black, as stated in the affidavit of service.  Based on the foregoing, a traverse hearing was warranted (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]).

Contrary to plaintiff's contention, the doctrine of judicial estoppel is inapplicable in this case (see generally MPEG LA, LLC v. Samsung Elecs. Co., Ltd., 166 A.D.3d 13, 21, 86 N.Y.S.3d 4 [1st Dept. 2018], lv denied 32 N.Y.3d 912, 2018 WL 6543038 [2018]).  The mortgaged property is a two-family house, and defendant allegedly lived on the second floor.  Even though his driver's license provided the address of the property without the designation of a floor, nothing in the record indicates that the failure to list the floor that he lived on was a ploy to disguise his whereabouts or that he has taken inconsistent positions in legal proceedings regarding his residence.  Nor did defendant fail to notify the Department of Motor Vehicles of a change of address, as required by Vehicle and Traffic Law § 505(5), such that he should be estopped from challenging service (see e.g. Perlbinder Holdings LLC v. Patel, 202 A.D.3d 578, 159 N.Y.S.3d 675 [1st Dept. 2022];  Stillman v. City of New York, 39 A.D.3d 301, 303, 834 N.Y.S.2d 115 [1st Dept. 2007]).

Plaintiff's contention that the court should have sua sponte granted leave to extend the time to serve defendant pursuant to CPLR 306–b is unavailing.  Plaintiff acknowledges that the record contains no evidence that it made a CPLR 306–b application before Supreme Court.  In any event, under CPLR 306–b, a court may extend the time for service “upon good cause shown or in the interest of justice,” and plaintiff fails to meet either standard (see Henneberry v. Borstein, 91 A.D.3d 493, 495–496, 937 N.Y.S.2d 177 [1st Dept. 2012]).