Wells Fargo Bank Minn. v Roman

[*1] Wells Fargo Bank Minn. v Roman 2006 NY Slip Op 50082(U) [10 Misc 3d 1075(A)] Decided on January 11, 2006 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 11, 2006
Supreme Court, Richmond County

Wells Fargo Bank Minnesota, NATIONAL ASSOCIATION, as Trustee under the Pooling and Servicing Agreement Dated as of February 28, 2001 Series 2001-A, Plaintiff(s)

against

John Roman, April K. Roman, New York City Transit Adjudication Bureau, New York City Environmental Control Board Bureau, "John Does" and "Jane Does", Defendant(s)



12086/04

Robert J. Gigante, J.

This motion to vacate a judgment of foreclosure and sale, and the sale itself, raises some issues of concern for consideration.

In seeking vacatur, defendant April K. Romano points to the affidavit of service of process filed in this case, which alludes to service upon one Christopher Romano. She avers that Christopher Romano is her eleven year old son (ten at time of the purported service), and thus [*2]cannot be considered a person of suitable age and discretion under CPLR 308(2). Plaintiff in opposition notes that the same affidavit describes Christopher Romano as approximately 23 years of age, 5'11'' in height, and approximately 180 pounds, with three earrings in his right ear. In other words, hardly the description of a ten year old boy.

The discrepancies described above would ordinarily require a traverse hearing on the issue of whether, in fact, a ten year old boy was served (see, e.g. Kopman v. Blue Ridge Insurance Co., 296 AD2d 479 (2d Dept.)). If so, the remaining question is whether that ten year old can be a person of suitable age and discretion as a matter of law.

It is settled that the person of suitable age need not be an adult. A responsible teenager, for example, will do. The criterion should be whether the person can be expected to advise the defendant of the service. (Siegel, New York Practice, Section 72 (2d Ed.)). There appears to be no "bright-line" age below which a child is not a suitable person for service of process, even though "at some point a person should be deemed by the court, as a matter of law, to be too young to have a valid status as deliveree" (Room Additions v. Howard, 124 Misc 2d 19 (emphasis added)).[FN1] The youngest person to have been declared as suitable for purposes of service under the CPLR, in the reported decisions found by the court, is twelve year old William Derrick Jr. (Durham Productions Inc. V. Sterling Film, 537 F. Supp. 1241, 1244). However, an eleven year old was presumed as a matter of law not to be of suitable age (Room Additions v. Howard, supra). Consequently, the court concludes that a ten year old is not of sufficient age and/or discretion to accept service on behalf of someone else. If it is ultimately determined that ten year old Christopher Romano was the individual served herein, the service is void, as are all subsequent proceedings against April Romano, as well as the sale to the third party purchaser.

For these reasons, a traverse hearing shall be held in the issue of the identity of the individual served. It shall be conducted by a Judicial Hearing Officer to be appointed by separate order.

E N T E R

Dated: January 11, 2006____________________________________

Robert J. Gigante, J.S.C.

Footnotes

Footnote 1:Room Additions construed a parallel service Statute, i.e. RPAPL 735, which contains identical "suitable age" language as CPLR 308(2).