PHH Mtge. Corp. v Colliton

[*1] PHH Mtge. Corp. v Colliton 2012 NY Slip Op 52097(U) Decided on November 13, 2012 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2012
Supreme Court, Dutchess County

PHH Mortgage Corporation, Plaintiff,

against

James P. Colliton, GRACE A. COLLITON, COMMISSIONER OF DUTCHESS COUNTY SOCIAL SERVICES, and JOHN DOE No.1 through JOHN DOE No.10, Defendants.



8344/10



ELLIS M. OSTER, ESQ.

SHAPIRO, DICARO & BARAK, LLC

Attorneys for Plaintiff

250 Mile Crossing Boulevard, Suite One

Rochester, New York 14624

JAMES P. COLLITON a/k/a JAMES COLLITON

Defendant, Pro Se

28 Millbank Road

Poughkeepsie, New York 12603

THOMAS P. DELPIZZO, ESQ.

Attorney for Defendant

DUTCHESS COUNTY DEPARTMENT OF SOCIAL SERVICES

60 Market Street

Poughkeepsie, New York 12601

James D. Pagones, J.

The plaintiff moves for an order for expedient service on Grace A. Colliton. Defendant James P. Colliton opposes the instant application.

This action, commenced on November 12, 2010, sounds in residential foreclosure. The plaintiff contends it effectuated service on Grace A. Colliton, owner of the premises being foreclosed upon, on November 18, 2010 when defendant James P. Colliton accepted service for his wife, Grace A. Colliton, at the [*2]premises. Defendant James P. Colliton interposed an answer dated December 8, 2010 alleging that Grace A. Colliton no longer resided at the premises at the time of service.

Approximately one year later, on December 28, 2011, the plaintiff attempted to serve Grace A. Colliton at The Meeting Place Centre for Growth and Healing at 180 Tambrook Lane, RR #5, Huntsville, Ontario, Canada (hereinafter The Meeting Place), where the plaintiff believed defendant Grace A. Colliton to be living. Attempts at personal service of defendant Grace A. Colliton were unsuccessful. It further appears from the plaintiff's submission that it was not able to confirm that defendant Grace A. Colliton resides or resided at The Meeting Place, but instead was informed by an unidentified female that defendant Grace A. Colliton resides in Gravenhurst, Ontario.

The plaintiff now requests that it be permitted to serve the summons and complaint by serving Marie Louise Bechthold at The Meeting Place and mailing and faxing a copy of the summons and complaint to Grace Colliton c/o Leslie Fleming, Lake Country Community Legal Clinic at 8-B Ontario, Bracebridge, Canada. It is unclear from the plaintiff's submission who Marie Louse Bechtold is or what relationship she may have to defendant Grace A. Colliton. It is equally unclear from the plaintiff's submission the relationship, if any, between the Lake Country Community Legal Clinic and defendant Grace A. Colliton.

"The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (20 UST 361, TIAS No. 6638 [1969]) (hereinafter the Hague Convention) is a multilateral treaty designed to simplify the methods for serving process abroad to assure that defendants sued in foreign jurisdictions receive actual and timely notice of suit and to facilitate proof of service abroad." (Fernandez v. Univan Leasing, 15 AD3d 343 [2nd Dept. 2005].) Pursuant to Article 19 of the Hague Convention, service of process may be accomplished by any method permitted by the internal laws of the country in which service is being made. (Id. at 344). Here, the plaintiff has failed to establish that Canada, which is a signatory of the Hague Convention, permits service as requested by the plaintiff. Additionally, the plaintiff has failed to set forth the basis for its belief that defendant Grace A. Colliton resides or resided at The Meeting Place. As such, there has been no demonstration to the court that the method of service suggested by the plaintiff is reasonably calculated, under all of the circumstances, to apprise defendant Grace A. Colliton of the underlying action. (Mullane v. Central Hanover Bank & Trust Co., 339 US 306 [1950].) Accordingly, the plaintiff's motion is denied.

While defendant James P. Colliton requests several items of affirmative relief in his opposition papers, including dismissal of the complaint pursuant to CPLR §306-b and consolidation, the [*3]defendant has failed to file a cross-motion and therefore the issues are not properly before the court at this time.

The Court read and considered the following documents upon this application:

PAGES NUMBERED

1.Notice of Motion..............................1-2

Affidavit-James P. Colliton..............1-2

2.Affirmation in Opposition-Oster...............1-10

Exhibits......................................A-G

The foregoing constitutes the decision and order of the

Court.

Dated:Poughkeepsie, New York

November 13, 2012

ENTER

HON. JAMES D. PAGONES, A.J.S.C.