TARON PARTNERS LLC v. C2GRE LLC

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Supreme Court, Appellate Division, Second Department, New York.

TARON PARTNERS, LLC, Plaintiff-Respondent, v. Suzanne V. MCCORMICK, Appellant; C2GRE, LLC, Nonparty-Respondent.

2016–10543

Decided: June 12, 2019

LEONARD B. AUSTIN, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ. The Griffith Firm, New York, N.Y. (Edward Griffith of counsel), for appellant. Kurzman, Eisenberg, Corbin & Lever, LLP, White Plains, N.Y. (John C. Re of counsel), for plaintiff-respondent.

DECISION & ORDER

ORDERED that the order dated September 13, 2016, is affirmed, with costs.

The plaintiff commenced this action by filing a summons and complaint on April 4, 2014.  The defendant failed to appear or answer the complaint, and the plaintiff moved for a default judgment and an order of reference.  In March 2015, the Supreme Court granted the plaintiff's motion without opposition.  On May 26, 2015, the court entered a judgment of foreclosure and sale, and the subject property was sold at auction on September 28, 2015.

By order to show cause entered June 6, 2016, the defendant moved, inter alia, to vacate the judgment of foreclosure and sale, set aside the sale, and dismiss the complaint on the ground, inter alia, that she was never served with the summons and complaint.  In an order entered September 13, 2016, the Supreme Court denied the defendant's motion, and the defendant appeals from that order.

A process server's affidavit of service constitutes prima facie evidence of proper service (see HSBC Bank USA, N.A. v. Daniels, 163 A.D.3d 639, 640, 81 N.Y.S.3d 584;  Nationstar Mtge., LLC v. Dekom, 161 A.D.3d 995, 996, 78 N.Y.S.3d 148;  Summitbridge Credit Invs., LLC v. Wallace, 128 A.D.3d 676, 677, 9 N.Y.S.3d 320;  JPMorgan Chase Bank, N.A. v. Todd, 125 A.D.3d 933, 5 N.Y.S.3d 181).  “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits” (Deutsche Bank Natl. Trust Co. v. Quinones, 114 A.D.3d 719, 719, 981 N.Y.S.2d 107 [internal quotation marks omitted];  see Nationstar Mtge., LLC v. Dekom, 161 A.D.3d at 996, 78 N.Y.S.3d 148;  Bank of N.Y. v. Samuels, 107 A.D.3d 653, 653–654, 968 N.Y.S.2d 93).  Affix and mail service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) by personal delivery or CPLR 308(2) by delivery to a person of suitable age and discretion cannot be made with due diligence (see CPLR 308[4];  Nationstar Mtge., LLC v. Dekom, 161 A.D.3d at 996, 78 N.Y.S.3d 148;  Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d 759, 759–760, 972 N.Y.S.2d 664;  Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462).  “As a general matter, 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” (Nationstar Mtge., LLC v. Dekom, 161 A.D.3d at 996, 78 N.Y.S.3d 148 [internal quotation marks omitted];  see Deutsche Bank Natl. Trust Co. v. White, 110 A.D.3d at 760, 972 N.Y.S.2d 664;  Estate of Waterman v. Jones, 46 A.D.3d at 65, 843 N.Y.S.2d 462).

Here, the plaintiff submitted an affidavit of the process server, which demonstrated that three visits were made to the defendant's residence, on different days, at different times of the day when the defendant could reasonably have been expected to be found at home, but the process server was unable, “with due diligence to find the defendant or a person of suitable age and discretion.”  The process server also described the means she used to verify the defendant's residential address, namely, that she spoke with a neighbor who stated that the defendant lived at that address.  The process server also described her unsuccessful attempt to ascertain the defendant's place of employment, in that she asked the same neighbor, who was “unable to divulge the defendant's place of employment” (see Nationstar Mtge., LLC v. Dekom, 161 A.D.3d at 996, 78 N.Y.S.3d 148).  Accordingly, the affidavit constituted prima facie evidence that the due diligence requirement was satisfied (see id.;  JP Morgan Chase Bank, N.A. v. Baldi, 128 A.D.3d 777, 777–778, 10 N.Y.S.3d 126).  The affidavit also constituted prima facie evidence that the process server properly affixed a copy of the summons and complaint to the door of the defendant's residence, and mailed a copy to the residence by first class mail (see Nationstar Mtge., LLC v. Dekom, 161 A.D.3d at 996–997, 78 N.Y.S.3d 148).  Contrary to the defendant's contention, she failed to rebut the presumption of proper service arising from the process server's affidavit.

We agree with the Supreme Court's denial, without a hearing, of that branch of the defendant's motion which sought relief pursuant to CPLR 317.  CPLR 317 permits a defendant who has been served with a summons and complaint other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons and complaint in time to defend and has a potentially meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116;  CitiMortgage, Inc. v. Finocchiaro, 131 A.D.3d 503, 504, 14 N.Y.S.3d 711;  Wassertheil v. Elburg, LLC, 94 A.D.3d 753, 754, 941 N.Y.S.2d 679;  Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d 1080, 1081, 923 N.Y.S.2d 572).  However, “to support a determination granting relief under CPLR 317, a party must still demonstrate, and the Court must find, that the party did not receive actual notice of the summons and complaint in time to defend the action” (Wassertheil v. Elburg, LLC, 94 A.D.3d at 754, 941 N.Y.S.2d 679 [internal quotation marks omitted];  see CPLR 317;  Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d at 142, 501 N.Y.S.2d 8, 492 N.E.2d 116;  Clover M. Barrett, P.C. v. Gordon, 90 A.D.3d 973, 936 N.Y.S.2d 217;  393 Lefferts Partners, LLC v. New York Ave. at Lefferts, LLC, 68 A.D.3d 976, 977, 890 N.Y.S.2d 330;  Marinoff v. Natty Realty Corp., 17 A.D.3d 412, 413, 792 N.Y.S.2d 491).  “The mere denial of receipt of the summons and complaint is insufficient to establish lack of actual notice for the purpose of CPLR 317” (Wassertheil v. Elburg, LLC, 94 A.D.3d at 754, 941 N.Y.S.2d 679 [internal quotation marks omitted];  see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 654, 968 N.Y.S.2d 93;  Matter of Rockland Bakery, Inc. v. B.M. Baking Co., Inc., 83 A.D.3d at 1081–1082, 923 N.Y.S.2d 572;  Levine v. Forgotson's Cent. Auto & Elec., Inc., 41 A.D.3d 552, 840 N.Y.S.2d 598).  Here, though the defendant stated in her affidavit in support of the motion that she “did not learn about the litigation at the time of its commencement,” she failed to assert any facts as to when she received actual notice of the action.  Since the defendant merely denied receipt of the summons and complaint, she failed to make the requisite showing that she did not receive actual notice of the summons and complaint in time to defend the action (see CitiMortgage, Inc. v. Finocchiaro, 131 A.D.3d at 504, 14 N.Y.S.3d 711;  Wassertheil v. Elburg, LLC, 94 A.D.3d at 754, 941 N.Y.S.2d 679).  In light of the foregoing, it is unnecessary to determine whether the defendant demonstrated the existence of a potentially meritorious defense for the purposes of CPLR 317 (see Stevens v. Stepanski, 164 A.D.3d 935, 938, 84 N.Y.S.3d 1;  Xiao Lou Li v. China Cheung Gee Realty, LLC, 139 A.D.3d 724, 726, 32 N.Y.S.3d 198).

“ ‘A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or which might have been litigated in the foreclosure action are concluded’ ” (83–17 Broadway Corp. v. Debcon Fin. Servs., Inc., 39 A.D.3d 583, 584–585, 835 N.Y.S.2d 602, quoting Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 170–171, 442 N.Y.S.2d 610;  see NAB Asset Venture IV, LLP v. Orangeburg Equities, 19 A.D.3d 565, 796 N.Y.S.2d 536;  New Horizons Invs. v. Marine Midland Bank, 248 A.D.2d 449, 669 N.Y.S.2d 666).  Since the defendant has failed to establish that she is entitled to an order vacating her default in appearing or answering the complaint and setting aside the judgment of foreclosure and sale, she is precluded from raising defenses which could have been litigated in the foreclosure action, including the plaintiff's alleged failure to comply with the notice provisions of RPAPL 1304 (see Deutsche Bank Natl. Trust Co. v. Lopez, 148 A.D.3d 475, 476, 49 N.Y.S.3d 123;  PHH Mtge. Corp. v. Celestin, 130 A.D.3d 703, 704, 11 N.Y.S.3d 871).  The other defenses argued in the defendant's brief are not properly before this Court, as they are raised for the first time on appeal (see Hudson City Sav. Bank v. Bomba, 149 A.D.3d 704, 706, 51 N.Y.S.3d 570;  PHH Mtge. Corp. v. Celestin, 130 A.D.3d at 704, 11 N.Y.S.3d 871).

AUSTIN, J.P., ROMAN, HINDS–RADIX and CHRISTOPHER, JJ., concur.