DEUTSCHE BANK NATIONAL TRUST COMPANY ABS 2003 NC6 2003 NC6 v. CALVIELLO CIT LLC NYS

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DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capital I Inc.Trust 2003–NC6, Mortgage Pass–Through Certificates, Series 2003–NC6, Plaintiff, v. Peter CALVIELLO, Lori Del Secolo, CIT Small Business Lending Corporation, Portfolio Recovery Assoc LLC, NYS Tax Commission, et al ., Defendant.

No. 54958/2015.

Decided: February 24, 2017

Leopold & Associates, PLLC, Armonk, attorneys for plaintiff. Clair & Gjertsen, Esqs., White Plains, attorneys for defendant Lori Del Secolo.

The following papers were read and considered on (1) plaintiff's motion for a default judgment; to appoint a referee; and to amend the caption; and (2) defendant Lori Del Secolo's cross motion, in effect, to vacate her default in appearing and answering the complaint and to dismiss the complaint or, in the alternative, to extend the time to file an answer and compel plaintiff to accept her late answer:

Papers Considered

1. Notice of Motion/Amended Notice of Motion/Affirmations of Neil Fox, Esq./ Proposed Order/Affidavit & Exhibits 1–2/Exhibits A–K

2. Notice of Cross Motion/Affirmation of Lancelot E. Colquitt, Esq. in Opposition and in Support of Cross Motion/Affidavit/Exhibits A–F

3. Reply Affirmation of Richard P. O'Brien, Esq. in Further Support of Plaintiff's Motion and in Opposition to Defendant's Cross Motion/Exhibits A–F

4. Affirmation of Lancelot E. Colquitt, Esq., in Reply and in Support of Cross Motion

Factual and Procedural Background

Plaintiff commenced this action to foreclose on a mortgage against the property located at 144 Bell Road, Scarsdale, New York, owned by the defendants Peter Calviello and Lori Del Secolo. None of the defendants answered or appeared except for Thalet & Gertler LLP and United States of America, Department of Treasury–Internal Revenue Service.

Plaintiff moves for an order granting a judgment of default against the non-answering defendants, for the appointment of a referee to compute the sum due under the mortgage, and to amend the caption to remove John Doe 1 through 12 and the parties that appear twice.

In support of its motion for a default judgment, plaintiff submits separate affidavits of service from the process server. On June 1, 2015, at 9:50 a.m., the process server served defendants Del Secolo and Calviello by affixing a copy of the summons and complaint, etc., to the door of 144 Bell Road, Scarsdale. The process server made previous attempts at personal delivery of the foreclosure documents upon Del Secolo on April 11, 2015 at 1:05 p.m., April 13, 2015 at 7:40 a.m.; April 14, 2015 at 7:35 p.m., April 15, 2015 at 11:25 a.m., April 23, 2015 at 2:10 p.m., April 25, 2015 at 7:40 a.m., April 29, 2015 at 12:45 p.m., and June 1, 2015, at 9:50 a.m. Copies of the documents were also mailed to Del Secolo and Calviello at the same address on June 3, 2015.

Del Secolo opposes plaintiff's motion and cross-moves to, in effect, to vacate her default in appearing or answering the complaint and to dismiss the complaint on the grounds of lack of personal jurisdiction, failure to prove standing, and failure to satisfy certain conditions precedent. In the alternative, Del Secolo moves to compel plaintiff to accept her late answer.

Del Secolo contends that neither she nor Calviello were properly served with the summons and complaint by nail and mail service pursuant to CPLR 308(4). Specifically, Del Secolo asserts that plaintiff did not exercise due diligence in first attempting service pursuant to 308(1) and 308(2) prior to resorting to nail and mail service at the residence.

Del Secola submits an affidavit attesting that on the alleged dates of attempted service she was employed in the human resources department of a magazine publisher, Latina Media Ventures LLC, located in New York City. Del Secola attests that her social media and professional profiles are open to public search and that she could have been easily located in her professional capacity through an online search. Del Secola herself attempted an online search and in less than two minutes she states that she was able to locate her professional social media profiles, the business listing of her employer and her work phone number. All of this information, she asserts, was on the first page of the search engine results. Moreover, Del Secola states that at her place of business there is both a doorman and secretary available for deliveries.

Del Secola further asserts that Calviello is her ex-husband and that their divorce was final in March 2011. Calviello moved out of the premises in approximately 2009 and to the best of her knowledge was living somewhere in Queens.

In opposition to Del Secola's cross motion to dismiss the complaint for lack of personal jurisdiction, plaintiff argues that Del Secola failed to demonstrate a reasonable excuse or a meritorious defense for her default in appearing or answering. Del Secola further argues that a general denial of service is insufficient to rebut the presumption of proper service.

Discussion

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's default in answering or appearing (see BAC Home Loans Servicing, LP v. Reardon, 132 AD3d 790 [2d Dep't 2015] ).

To defeat plaintiff's prima facie showing under CPLR 3215, and to be relieved of her default in answering the complaint, the defendant must establish that there was no default in answering due to a jurisdictional defect or that she had a reasonable excuse for her default and a potentially meritorious defense to the action (see Fried v. Jacob Holding, Inc., 110 AD3d 56, 60 [2d Dep't 2013]; U .S. Bank Natl. Assn. v. Wolnerman, 135 AD3d 850 [2d Dep't 2016] ).

Here, Del Secolo established that there was no default by submitting sufficient evidence to demonstrate that personal jurisdiction was not obtained over her (see Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343 [2nd Dep't 2003] ).

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 (see CPLR 308 [4]; Wells Fargo Bank, NA v. Besemer, 131 AD3d 1047 [2d Dep't 2015]; Deutsche Bank Natl. Trust Co. v. White, 110 AD3d 759 [2d Dep't 2013] ). The requirement of due diligence must be strictly observed because “there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4)” (Kaszovitz v. Weiszman, 110 A.D.2d 117, 120 [2d Dep't 1985]; see McSorley v. Spear, 50 AD3d 652 [2d Dep't 2008] ).

“What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality” (McSorley v. Spear, 50 AD3d at 653 citing Estate of Waterman v. Jones, 46 AD3d 63, 66 [2d Dep't 2007] ). “For the purpose of satisfying the due diligence' requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment” (Estate of Waterman v. Jones, 46 AD3d at 66; see McSorley v. Spear, 50 AD3d at 654). Generally, the “due diligence” requirement may be met with “a few visits on different occasions and at different times to the defendant's residence or place of business when the defendant could reasonably be expected to be found at such location at those times” (Estate of Waterman v. Jones, 46 AD3d at 66).

The affidavit of the process server demonstrates that prior to resorting to nail and mail service upon Del Secolo, he made eight attempts to serve Del Secolo at her residence on weekends and weekdays at differing times when she could reasonably have been expected to be found at that location (see JP Morgan Chase Bank, N .A. v. Baldi, 128 AD3d 777 [2d Dept] ). However, all attempts at personal service were made at Del Secolo's residence. Del Secolo's affidavit establishes that her place of business could have easily been located through an online search. Plaintiff failed to submit any evidence to demonstrate that inquiries were made into Del Secolo's place of employment or business address. Thus, the due diligence requirement has not been satisfied with respect to service upon Del Secolo and no hearing is warranted on the issue of proper service upon her (see Serraro v. Staropoli, 94 AD3d 1083 [2d Dep't 2012]; c.f. JP Morgan Chase Bank, N.A. v. Baldi, 128 AD3d 777 [2d Dep't 2015] [finding that service pursuant to CPLR 308(4) was proper where three visits were made to the appellant's home and the process server also described in detail his unsuccessful attempt to obtain an employment address for the appellant] ).

Del Secolo, however, lacks standing to contest the validity of service upon Calviello (see NYCTL 1996–1 Trust v. King, 13 AD3d 429 [2d Dep't 2004] [holding that the defense of improper service of process in a foreclosure action is personal in nature and may only be raised by the party improperly served] ) and Calviello has not appeared in this action.

Based upon the foregoing, it is:

ORDERED that the branch of plaintiff's motion to amend the caption is GRANTED; and it is further

ORDERED that the branch of plaintiff's motion for a default judgment is DENIED as to Del Secolo and the complaint is dismissed insofar as asserted against Del Secolo for failure to obtain personal jurisdiction; and it is further

ORDERED that the branch of plaintiff's motion for a default judgment against the remaining non-answering parties is GRANTED; and it is further

ORDERED that Del Secolo's cross motion to dismiss the complaint insofar as asserted against her is GRANTED.

WILLIAM J. GIACOMO, J.