CITIBANK v. Gracieuse Colon, appellant. (1999)

In an action to foreclose a mortgage, the defendant Gracieuse Colon appeals from an order of the Supreme Court, Kings County, (Clemente, J.), dated May 11, 1998, which denied her motion to vacate a judgment of foreclosure and sale dated February 6, 1998.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the judgment of foreclosure and sale dated February 6, 1998, is vacated as to the appellant, the complaint is dismissed insofar as asserted against her, and the action against the remaining defendants is severed.

This court has observed that “the ‘mailing’ requirement of CPLR 308 (subd 2) is to be strictly construed” (Booth v. Lipton, 87 A.D.2d 856, 857, 449 N.Y.S.2d 289;  see, Matter of Gottesman, 127 A.D.2d 563, 564, 511 N.Y.S.2d 643;  Connell v. Hayden, 83 A.D.2d 30, 34, 443 N.Y.S.2d 383;  cf., Feinstein v. Bergner, 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161;  Donohue v. La Pierre, 99 A.D.2d 570, 471 N.Y.S.2d 396).   Here, the record reveals that the plaintiff's process server mailed the summons and complaint, in purported conformity with CPLR 308(2), to an address that was not the appellant's last known residence.   Therefore, the service was defective and the appellant's motion to vacate her default must be granted (cf., Sapienza v. Haag, 89 A.D.2d 816, 453 N.Y.S.2d 532).

MEMORANDUM BY THE COURT.