BANK OF NEW YORK MELLON v. CHAUDHURY (2023)

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Tanvir Chaudhury and Farhana Alam appeal from an order of the Supreme Court, Suffolk County (Joseph Pastoressa, J.), dated December 23, 2019.  The order, after a hearing to determine the validity of service of process upon those defendants, denied those defendants' motion pursuant to CPLR 5015(a)(4) to vacate an order of reference of the same court dated April 9, 2015, and a judgment of foreclosure and sale of the same court dated October 17, 2016, issued upon their failure to appear or answer the complaint, to set aside the foreclosure sale of the subject property and to vacate the referee's deed, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendants Tanvir Chaudhury and Farhana Alam (hereinafter together the defendants), among others, to foreclose a mortgage encumbering a parcel of real property located at 2 Julia Circle in Dix Hills.  According to affidavits of the plaintiff's process server, Chaudhury was personally served with the summons and complaint at the mortgaged premises, and Alam was served with the summons and complaint at her dwelling place and usual place of abode by delivering copies thereof to Chaudhury, a person of suitable age and discretion, and by mailing copies of the pleadings to her at the subject address.  The defendants failed to appear or answer the complaint.

In October 2014, the plaintiff moved for leave to enter a default judgment against the defendants and for an order of reference.  The defendants did not oppose the motion.  In an order dated April 9, 2015, the Supreme Court granted the unopposed motion and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan.  Thereafter, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale.  The defendants did not oppose the motion.  By order and judgment of foreclosure and sale dated October 17, 2016, the court, inter alia, granted the plaintiff's unopposed motion and directed the sale of the subject property.  A foreclosure sale of the property occurred on November 1, 2017.

In March 2019, the defendants moved pursuant to CPLR 5015(a)(4) to vacate the order of reference and the order and judgment of foreclosure and sale, to set aside the foreclosure sale and to vacate the referee's deed, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.  The Supreme Court held a hearing to determine the validity of service of process upon the defendants, and then, in an order dated December 23, 2019, the court denied the defendants' motion.  The defendants appeal.

“ ‘At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence’ ” (Bank of Am., N.A. v. Genzler, 188 A.D.3d 634, 635, 133 N.Y.S.3d 645, quoting Grand Pac. Mtge. Corp. v. Pietranski, 175 A.D.3d 1503, 1505, 109 N.Y.S.3d 158).  “ ‘In reviewing a determination made after a hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses’ ” (Bank of Am., N.A. v. Genzler, 188 A.D.3d at 635, 133 N.Y.S.3d 645, quoting Indymac Fed. Bank, FSB v. Jones, 173 A.D.3d 702, 703, 99 N.Y.S.3d 419).

Here, the Supreme Court correctly determined that it acquired jurisdiction over the defendants pursuant to CPLR 308(1) and (2).  “Where a process server has no independent recollection of events, a process server's logbook may be admitted in evidence as a business record” (Sperry Assoc. Fed. Credit Union v. John, 160 A.D.3d 1007, 1009, 76 N.Y.S.3d 188).  Further, “mailing may be proved by any number of documents meeting the requirements of the business records exception to the hearsay rule under CPLR 4518” (HSBC Bank USA, N.A. v. Ozcan, 154 A.D.3d 822, 826, 64 N.Y.S.3d 38).  In this case, the testimony of the plaintiff's process server that he effected service on the defendants by personal delivery and by personally performing the requisite mailing, along with the documentary evidence proffered by the plaintiff, established, prima facie, that the defendants were properly served.  Contrary to the defendants' contention, the plaintiff established that the records at issue relating to service upon the defendants were admissible under the business records exception to the hearsay rule (see CPLR 4518;  Citimortgage, Inc. v. Diamant, 131 A.D.3d 1193, 16 N.Y.S.3d 780).  Further, under the circumstances, an erroneous notation in the process server's mailing book reflecting the address of the subject property as 2 Julia Court, rather than 2 Julia Circle, did not warrant a determination that service upon defendant Alam pursuant to CPLR 308(2) was defective (see Ludmer v. Hasan, 33 A.D.3d 594, 821 N.Y.S.2d 661;  Security Mut. Life Ins. Co. of N.Y. v. DiPasquale, 271 A.D.2d 268, 707 N.Y.S.2d 39).

The defendants failed to rebut the plaintiff's prima facie showing of proper service.  The Supreme Court rejected Chaudhury's denial of service as incredible, and declined to credit the defendants' evidence as lacking probative value, and we decline to disturb those credibility determinations, which were made with the benefit of seeing and hearing the witnesses at the hearing (see Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 765, 882 N.Y.S.2d 145;  Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86).

The defendants' remaining contention is without merit.

Accordingly, the Supreme Court properly denied the defendants' motion to vacate the order of reference and the judgment of foreclosure and sale, to set aside the foreclosure sale of the subject property and to vacate the referee's deed, and to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction.

DILLON, J.P., MILLER, WOOTEN and TAYLOR, JJ., concur.