CITIBANK v. SAGASTUME (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Oscar Sagastume appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated August 14, 2023.  The order denied that defendant's motion pursuant to CPLR 5015(a) to vacate an order of reference of the same court dated July 18, 2007, and an order and judgment of foreclosure and sale (one paper) of the same court dated July 22, 2008, both entered upon that defendant's failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Oscar Sagastume pursuant to CPLR 5015(a) to vacate the order of reference and the order and judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction is granted.

In December 2006, the plaintiff commenced this action to foreclose a mortgage on certain real property located in Brooklyn (hereinafter the property) against, among others, the defendant Oscar Sagastume (hereinafter the defendant).  After the defendant failed to appear or answer the complaint, the plaintiff moved, inter alia, for an order of reference.  In an order of reference dated July 18, 2007, the Supreme Court granted the plaintiff's motion.  In an order and judgment of foreclosure and sale dated July 22, 2008 (hereinafter the judgment), the court granted the plaintiff's motion, among other things, to confirm the referee's report, confirmed the referee's report, and directed the sale of the property.

Thereafter, the defendant moved pursuant to CPLR 5015(a) to vacate the order of reference and the judgment, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.  The plaintiff opposed the motion.  In an order dated August 14, 2023, the Supreme Court denied the motion.  The defendant appeals.

“Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308” (Bank of N.Y. Mellon v. DeFilippo, 242 AD3d 1165, 1166 [internal quotation marks omitted] ).  “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” (Wilmington Sav. Fund Socy., FSB v Zabrowsky, 212 AD3d 866, 868–869 [internal quotation marks omitted] ).  “To satisfy the ‘due diligence’ requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant's whereabouts and place of employment” (Bank of N.Y. Mellon v. DeFilippo, 242 AD3d at 1166;  see Niebling v. Pioreck, 222 AD3d 873, 875).  “The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Creswell Invs., Ltd. v. Brazil+Q1 Ltd., 234 AD3d 667, 668, citing Niebling v. Pioreck, 222 AD3d at 874).

Here, the plaintiff failed to demonstrate that the process server acted with due diligence before relying on affix and mail service pursuant to CPLR 308(4) (see Sams Distribs., LLC v. Friedman, 235 AD3d 1021, 1022;  Niebling v. Pioreck, 222 AD3d at 875).  The process server resorted to service pursuant to CPLR 308(4) after only twice attempting personal service at the defendant's residence during weekday hours when it could reasonably have been expected that the defendant was either working or in transit to or from work (see Bank of N.Y. Mellon v. DeFilippo, 242 AD3d at 1167;  Sams Distribs., LLC v. Friedman, 235 AD3d at 1022).  Moreover, there was no evidence that the process server made any genuine inquiries about the defendant's whereabouts and place of business (see Sams Distribs., LLC v. Friedman, 235 AD3d at 1022;  Niebling v. Pioreck, 222 AD3D at 874–875).

Contrary to the plaintiff's contention, the doctrine of laches cannot be used to defeat an application to vacate a judgment that was issued in the absence of personal jurisdiction (see Deutsche Bank Natl. Trust Co. v Ennis, 236 AD3d 987, 989;  Federal Home Loan Mtge. Corp. v MacPherson, 277 A.D.2d 418, 419).

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court should have granted the defendant's motion pursuant to CPLR 5015(a) to vacate the order of reference and the judgment, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

DUFFY, J.P., WOOTEN, LOVE and QUIRK, JJ., concur.