U.S. Bank Natl. Assoc. v Murillo
Annotate this Case
Download PDF
U.S. Bank Natl. Assoc. v Murillo 2011 NY Slip Op 33517(U) December 15, 2011 Supreme Court, Nassau County Docket Number: 6056/08 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] !""_I SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 4 NASSAU COUNTY S. BANK NATIONAL ASSOCIATION, AS TRUSTEE THE STRUCTURED ASSET INVESTMENT TRAVERSE HEARING HELD LOAN 2005- 10, OCTOBER 11, 2011 Plaintiff, SUBMISSION DATE: 11/10/11 -againstSOLEDAD MURILLO, LUIS DUQUE, BANK UNTED, FSB, Defendants. INDEX NO. : 6056/08 , 2011 for a The instant foreclosure action was referred to this par on September 14 traverse hearing and disposition, following a motion to vacate a Judgment of Foreclosure , the mortgagor s propert and Sale. The Court notes that , according to plaintiff's counsel had been transferred, following a referee s sale , to an entity related to plaintiff. No information was submitted showing that such entity was a bona fide purchaser. Accordingly, no issues regarding the standing or rights of said purchaser were considered. , October The traverse hearing was conducted in three segments on October 5, 2011 , 2011 and October 11, 2011 , based upon the availabilty of the Court and witnesses. The hearing had a submission date of November 10 , 2011. The proces , server , Gary Cardi , testified that he was a six-year " self employed" former Police Officer, and that he received service assignments from A&J Process Service , which was located on the same floor , at the same address, as the local business 2008 office of plaintiff's counsel , Steven J. Baum, PC. Mr. Cardi stated that on April 5, Murilo at approximately 11 :30 a. , he served the Summons and Complaint upon Soledad 308(1) and upon the co-mortgagor Luis Duque by personally pursuant to 308(2). According to Mr. Cardi, service was made , with additional at defendants ' home, 934 Southern Drive , Franklin Square , New York CPLR substituted service pursuant to CPLR mailings to the same address. , 2008, as Mr. Cardi described Ms. Soledad Murilo , the person he served on April 5 , brown hair. " That female , white 50 to 59 years old about 5' 4" , weighed about 13Olbs testimony was giv, n after Mr. Cardi' s recollection was refreshed by his affidavit of service submitted in this case. On cross-examination , defense counsel introduced into evidence 2008 , at another affidavit slgned by Mr. Cardi , which pertained to service on April 5 , upon Frances Faster , at an address in Valley Stream. Mr. Cardi admitted that 11 :25 a. description of there was " no diffi rence" between the description of Ms. Murilo and the Ms. Faster on the 1wo affidavits of service. The Court notes that the distance between the [* 2] two locations was not stated, except by plaintiff's counsel , Mr. Victor Spinelli. In closing argument , Mr. Spinelli stated that the Valley Stream address was only one mile from that Murilo at her of defendants ' residence and that Mr. Cardi could easily have served Ms. residence twenty- three minutes later, as indicated on the respective affidavits of service. (The Cour notes , that, according to " Mapquest" , the distance between the two addresses is four to five miles. she was Following :t1r. Cardi' s testimony, the defendant Ms. Murilo testified that at work from 9:00 a. m. to 5:00 p. m. on April 5 2008 , the day of purported service. She stated that after her arrival she may have walked or driven a few miles to visit one orhome retured more of the fifteen sales people who worked for her, but that she would not have of her testimony, she during the day, based on her " custom and habit." In support submitted a print out denominated a " milage log " for the month of April 2008, purportedly 2008 of created in the regular course of her business , which showed an entry for April 5 forty miles traveled. The Court notes that, according to " Map quest" the distance between , NY , was approximately 15Ms. Murilo s residence and her place of business in Queens fort miles 20 miles, depending on the route taken. If the mileage log is accepted, the reflects one trip to her office and one trip home, which supports the argument that she could not have tak,;m an additional trip home and returned to her office in the middle of the day on April 5 , 2008. Based upon the testimony and exhibits alone, the Court is left with reservations regarding the credibilty of both witnesses, due to inconsistencies in their respective submissions. Mr. Cardi' s demeanor further weakened his testimony. The Court' s ultimate determination , however , is governed by a matter raised in the pro bono traverse hearing by defense counsel conjunction with the Nassau County Bar Association , Mortgage Foreclosure Legal Consultation Project. Mr. Marquez called upon Mr. Cardi to produce his records , 2008. Mr. Cardi admitted regarding the services of process that he performed on April 5 , 2008, that not only did h, fail to keep records regarding the services he made on April 5 , that he W1S not aware of any duty to do so, and hadn' t done so in the thousands of , R. David Marquez, appearing but also services that he performed. Mr. Marquez argued that, insofar as Mr. Cardi failed to maintain records in accordance with the statutory mandate, the service is void and the ~89-cc , which, GBL matter should be dismissed. (The Court notes that Mr. Marquez cited as discussed below , does not apply in the case at bar , but which prompted the Court' et seq. GBL ~89 examination of the applicable provisions of In response , Mr. Spinell argued , essentially, that the failure to keep or produce , does not require a records is of no consequence. " Since Nassau County, as I am aware of process server to be licensed , the process server cannot be mandated or penalized for required of licensed process servers. As a matter of law, failure failng to maintain records to keep records shall not automatically void purported service and this can be found in the ., [* 3] Appellate Division case Feierstein versus Mullan under 120 Misc2d 574, 467 NYS2d 478 Appellate Term 1983. Mr. Spinell is wrong. Article 8 and Article 8-A of the General Business Law govern the duties of process servers. GBL Artcle 8 applies to all process servers (who meet the statutory definition), and GBL Article 8-A (not applicable here) applies to all process servers in eities having a population of one milion or more. Under GBL Article , a process server is defined as a person, other than an attorney or a par to an action acting on his own behalf, who (a) derives income from the service of papers in an action; (b) has effected service in five or more actions or proceedings in the twelve month period immediately preceding the service in question. GBL ~89- t. The definition does not distinguish between licensed or unlicensed process servers. Thus , even if Nassau County does not presently require a process server to be licensed , all process servers are subject to GBL ~ the State s record keeping mandate , and may be penalized for non-compliance. 89-u requires each process server to maintain a legible record of all service made by him as prescribed by that section , and specifies the information required in the log. Compliance with GBL ~89-u is subject to enforcement by the attorney general , and civil penalties may be imposed. GBL 89-v. (The licensing requirement , imposed upon process servers by local ordinance, mayor may not coincide with the more stringent statutory requirements See applicable to process servers in cities having a population of one 89-cc. GBL Article 8milion or more. A; GBL Mr. Spinellj' s legal argument - that the failure to maintain records does not void purported service -- is invalid. The case cited by Mr. Spinell, a 1983 decision of the Supreme Court, Appellate Term, First Deparment , is neither controllng nor relevant. That case held that non-compliance with the licensing provisions of the New York City See Administrative Code was not grounds for dismissal. Feierstein v. Mullan, 120 Misc. 2d 574. The Feierstein case did not deal with the record- keeping requirements of GBL Article 8 or Article 8- A. Mr. Spinell has not cited , and the Court' s own research has not revealed, any authority for the proposition proffered by Mr. Spinell , nor any controllng authority on the issue at bar. This Court holds - seemingly for the first time - that the failure, at a traverse 89-u may hearing, to produc( result in dismissal of the action. The Court adopts the reasoning articulated by its companion court in First Commercial Bank of Memphis v. Ndiaye , 189 Misc. 2d 523 Inter- Ocean Realty Assoc. v. JSA Realty Corp., (Sup. Ct., Queens Co. 152 Misc. 2d 901 (Civ. Ct. , NY County, 1991). In First Commercial Bank, a foreclosure action , the licensed process server produced a computer- generated log book at a traverse hearing. The Court found that this method of record- keeping failed to comply with the 89-cc and local regulations applicable to licensed process servers in New York City. The Court noted that the purpose of these record-keeping requirements was 'C combat the continuing problem of process serving abuse , known as records kept in accordance with the requirements of GBL , 2001). precise requirements of GBL See also ~~~~ [* 4] .f' sewer service, " and to ensure the reliabilty of the records presented in support of jurisdiction. Accordingly, the Court held that the testimony of the process server who failed to keep records in accordance with the statutory requirements could not be credited. This failure to keep appropriate records was considered a failure to comply with the rules 22 NYCRR ~ 20S. 29. The Court held that , absent a showing of good cause for non-compliance , the underlying cause of action should be dismissed for lack of jurisdiction. See of the court regarding the production of records at a traverse hearing. The justification for dismissal is even more compellng where , as here , the process server does not produce any records at the traverse hearing. Ignorance of the law does not Inter- Ocean Realty Assoc., 152 Misc. Cf constitute good cause for non-compliance. 901 (Unverified sta.tement by process server that his record book was stolen from his car 2GS. 29). did not constitute good cause for non-compliance with 22 NYCRR With respect to the case at bar , the Court notes the production of contemporaneous records might hav(: enhanced Mr. Cardi' s credibilty and aided in the reconstrction of the events that occurred on April 5 , 2008. His own counsel , Mr. Spinell , on objection to cross-examination , asked " (h)ow is he going to remember 2008?" The law provides specific direction regarding how such events are to be memorialized, which is set forth in Article S and Article S- A of the General Business Law. This Court , recognizing the sound policy of preventing questionable service practices, finds that the process server, Mr. Cardi , was required to keep records in accordance with GBL ~89-u, and that his failure to produce such records at the traverse hearing, as required by 22 NYCRR ~ 20S. 29, is unlawful and constitutes grounds for dismissal for lack of jurisdiction. In the past , prevailng practices may have pennitted reliance upon affidavits of service and proces3 servers ' credibilty. The duty to keep comprehensive records may have been unnoticed , or underestimated by litigants and the Cours. Past practice however , canot h~ the motivating force for future conduct and determinations. The need, particularly in this economic environment and under these tellng circumstances, for valid and reliable proof of service, mandates the rejection of " trst me " and the adoption of show me. ORDERED , that the application of defendant Soledad Murilo, to vacate the 5015(a) (4) is granted. The court determines Judgment in this al;tion pursuant to that the purported service upon defendants is null and void , and the matter is dismissed for lack of jurisdiction. This constitutes the Order of the Court. CPLR ate 2 2 2011 COUNTY 1fy( OFIC
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
