HSBC Bank USA, N.A. v Fleurimond

[*1] HSBC Bank USA, N.A. v Fleurimond 2008 NY Slip Op 52320(U) [21 Misc 3d 1132(A)] Decided on November 18, 2008 Sup Ct, Kings County Schneier, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 9, 2009; it will not be published in the printed Official Reports.

Decided on November 18, 2008
Sup Ct, Kings County

HSBC Bank USA, N.A. AS TRUSTEE FOR THE REGISTERED HOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST SERIES, 2055-HE2, ASSET BACKED PASS-THROUGH CERTIFICATES, C/O OCWEN LOAN SERVICING, LLC 1675 PALM BEACH LAKES WEST BEACH FL 33401, Plaintiff,

against

Marie L. Fleurimond, LOUISE R. DEROSE, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, OCWEN LOAN SERVICING, LLP., ROCIO VIGUERA, SHAKERA BETHEA, et al., Defendants.



7453-1006



ATTORNEY FOR PLAINTIFF

HSBC BANK USA,N.A.ET AL

STEVEN J. BAUM, P.C.

P.O. BOX 1291

BUFFALO, NEW YORK 14240-1291 (761) 204-2400

ATTORNEYS FOR DEFENDANT

MARIE L. FLEURIMOND

ROBERTS & FIDLER, P.C.

26 COURT STREET, PENTHOUSE SUITE

BROOKLYN, NEW YORK 11242

(718) 596-3800 EXT.18

Martin Schneier, J.

In this foreclosure action defendant, Marie L. Fleurimond (Fleurimond) moves to set aside the foreclosure auction sale of the mortgaged premises, 960 Ralph Avenue, Brooklyn, NY (premises) on the grounds that there was no personal jurisdiction over her.

Background

Fleurimond purchased the premises and obtained a mortgage on December 20, 2004. Fleurimond defaulted on the mortgage and plaintiff commenced this foreclosure action on March 8, 2006. Plaintiff was granted a default Judgment of Foreclosure and Sale on August 15, 2007 and, a foreclosure sale was held on March 20, 2008, at which the premises were sold back to plaintiff.

Plaintiff submits three conflicting affidavits of service of the Summons and Complaint.

Process server John Medina in his affidavit of service sworn to on March 28, 2006 avers:

"That on 03/23/2006 at 0:2:45 P.M. at 960 Ralph Avenue

Brooklyn, NY 11236 deponent served the within SUMMONS

AND COMPLAINT bearing Index Number and Filing Date

endorsed thereon on MARIE L. FLEURIMOND defendant

therein named."

"By affixing 1 true copy thereof to the door of said premises,

the same being the defendant's dwelling place within the

State of New York." [*2]

Process server, Gary Cardi in his affidavit of service sworn to on

March 10, 2006 avers:

"That on 04/07/2006 at 9:45 P.M. at 100 S. Central Ave.,

Valley Stream, NY 11580 deponent served the within

SUMMONS AND COMPLAINT bearing Index Number and

Filing Date endorsed thereon on MARIE L. FLEURIMOND

defendant therein named."

"By affixing 1 true copy thereof to the door of said premises,

the same being the defendant's dwelling place within the

State of New York."

Mikita J. Thompson in her hearsay Supplemental Affidavit

sworn to on April 21, 2008 avers:

"To the best of deponent's information and knowledge

deponent hereby states,"

..... "deponent confirmed that the defendants did not

reside at said address" (960 Ralph Avenue, Brooklyn

NY 11236).

"Deponent's office ran an Accurint "Person" search

for both defendants. Said search for Marie L. Fleurimond

provided possible addresses of 3035 Brighton 6th Street,

Apt. 3, Brooklyn, NY 11235 and 100 N. Central Avenue,

Valley Stream NY 11580."

"After diligent attempts, on April 7, 2006 at 9:45 a.m.

your deponent served Marie L. Fleurimond by nail

and mail service in accordance with CPLR 308 (4)

at 100 N. Central Avenue, Valley Stream, NY 11580,

however said affidavit of attempt names the address as

100 S. Central Avenue, Valley Stream, NY, 11580." [*3]

Fleurimond in her affidavits avers that,

"I never lived at 960 Ralph Avenue. My name never

appeared on the door or mailbox."

"....I have absolutely no association with either 100 N.

Central Avenue or 100 S. Central Avenue, Valley Stream,

New York. I have never ever visited these addresses."

"Until December, 2006, I lived for 18 years at 3035

Brighton 6th Street, Brooklyn, New York.

DISCUSSION

It is "axiomatic that 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" (McMullen v. Arnone, 79 AD2d 496, 499 [2d Dept. 1981]), irrespective of the question of merit.

Mikita A. Thompson's Supplemental Affidavit is without any evidentiary value whatsoever with respect to the alleged service of the Summons and Complaint at premises 100 N. Central Avenue, Valley Stream, NY 11580 as it is replete solely with hearsay. Thus, there is no affidavit of this service by the process server, Gary Cardi.

CPLR 308 provides in pertinent part:

Personal service upon a natural person shall be made

by any of the following methods:"

"4...by affixing the summons to the door of either the

actual place of business, dwelling place or usual

place of abode within the state of the person to be

served...."

This method of service is often referred to as "nail and mail [*4]

service" or "substituted service."

Fleurimond's assertion that she never resided at 960 Ralph Avenue, Brooklyn, NY or 100 S. Cental Avenue, Valley Stream NY or 100 N. Central Avenue, Valley Stream, NY and has only resided at 3035 Brighton 6th Street, Brooklyn, NY remains as unrebutted proof that the place at which she was purportedly served pursuant to CPLR 308(4) was never her actual dwelling nor her usual place of abode (Bank Nat'l Assn. v. Osorio, 26 AD3d 452 [2d Dept 2006])

Where the defendant asserts that she was never personally served pursuant to CPLR 308(4) the plaintiff is required to proffer a process server's affidavit showing that the SUMMONS was affixed to the door of defendant's "actual dwelling place or usual place of abode" (Feinstein v. Bergner, 48 NY2d 234 [1979])

Here there is no competent process server's affidavit submitted to show that the summons was duly affixed to the door of 100 N. Central Avenue, Valley Stream, NY, 11580 which plaintiff claims to be Fleurimond's "actual dwelling place or usual place of abode". Thus, there is no prima facie evidence of proper service.

CONCLUSION

Based on the foregoing, Fleurimond's motion to set aside the foreclosure auction sale of premises 960 Ralph Avenue, Brooklyn, NY is granted and the Judgment of Foreclosure and Sale dated August 15, 2007, is vacated.

This constitutes the Decision and Order of the Court.

__________________________

J.S.C.