Deutsche Bank Natl. Trust Co. v Milone

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Deutsche Bank Natl. Trust Co. v Milone 2016 NY Slip Op 32562(U) December 9, 2016 Supreme Court, Suffolk County Docket Number: 13935/2013 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] copy MEMO DECISION & ORDcR INDEXNo. 13935/2013 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESE N T: Hon. THOMAS F. WHELAN Justice of the Supreme Court ---------------------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST CO. AS TRUSTEE, FOR RBSGC MORTGAGE LOAN TRUST, 2007-B MOTION DATE: 9/30/ 16 SUBMITDATE: 11118/ 16 Mot. Seq. - 002 - MOTD Mot. Seq. - 003 - XMD CDISP: NO WOODS, OVIATT, GILMAN, LLP Attys. For Plaintiff 2 State St. Rochester, NY 14614 Plaintiff, -againstJOHN MILONE, STATE OF NEW YORK ON BEHALF OF UNIVERSITY HOSPITAL and "JOHN DOE" Defendants. ROBERT P. KIRK, JR., PC Atty. For Defendant Milone 1 West St. Farmingdale, NY 11735 ANNE MARIE RAGO, ESQ. Assist. Atty. General ofNYS Atty. For State of NY olblo Hospital 2100 Middle Country Rd. Centereach, NY 11720 --------~---------------------------------~------------------X Upon the following papers numbered I to 11 read on this motion by the plaintiff for default judgments and other relief and cross motion by defendant Milone to compel acceptance of answer or leave to serve late answer ; ; Notice of Cross Motion and supporting Notice of Motion/Order to Show Cause and supporting papers I - 4 ; Answering papers 9-10 ; Reply papers _ _ ; Other I I (memorandum) ; (and papers 5-8 afte1 hem ing eotmscl i11 st1pport and opposed to the motion) it is, ORDERE D that those portions of this motion (#002) by the plaintiff for an order identifying the true name of an unknown defendant served with process at the mortgaged premises, relieving the duly appointed guardian ad Iitem/military attorney from his further representation of the defendant obligor/mortgagor who was served by publication pursuant to CPLR 308(5) and 316 and an order ofreference on default, are considered under CPLR 1024, 1003 and 3215 and RPAPL 1321 and is granted; and it is further [* 2] Deutsche Hank National Trust v Milone Index No. t 3935/2013 Page 2 ORDERED that the compensation of Kenneth Seidell. 1~ sq, the guardian ad !item/ military attorney for John Milone, who has since appeared herein by counsel is hereby fixed in the amount of $250.00, which amount the plaintiff shall remit within fony-tive (45) days from the date of this order lo Kenneth Seidell. Esq.; and it is further ORDERED that the those portions of the plaintiff s motion (#002) wherein it seeks an order deeming s<:!rvice of process of the supplemental summons and complaint "valid and effective. mmc pro rune··, is considered under CPLR 306-b and 316 and denied: and it is further ORDERED that the remaining portions of the plaintiffs motion (#002) for, in effect, an order excusing its delay in moving for default j udgrnents beyond the one year time Iimitation period set forth in CPLR 3215(c) is considered thereunder and is granted: and it is further ORDERED that the cross motion (#003) by defendant. John Milone, for. in effect, an order compelling acceptance or his August 15, 2016 answer or to vacate his default in timely answering the summons and complaint and for leave to appear herein by answer in the form of the one attached to the moving papers is considered under CPLR 320, 2004, 2005 and 3012(d) and is denied. In May of 2013, the plaintiff commenced this action to foreclose the lien of a November 15, 2006 mortgage given by defondant, John Milone, to Wells Fargo Bank, N.A, to secure a mortgage note in the amount of $402.500.00 likewise given on that date. The plaintiff effected service of the summons and complaint in June of 2013 upon, Rose Saccento, a tenant found at the mortgaged premises. who was named herein as an unknown defendant. Also served in June of2013 was the defendant. the State University of New York. In contrast. the plaintiff was unable to effect service of process and of tbe other initiatory papers upon on the obligor/ mortgagor defendant Mi lone pursuant to CP LR 308(1 ) · (4 ). A Ithough the Lindenhurst property encumbered by the mortgage was and remains '·investment property"'. which defendant Milone leases to others rather than occupy it or any portion thereofus his residence. the mortgaged premises so encumbered were identified in the mortgage indenture as the address to which all notices were lo be sent to defendant Milone. Ncverthekss. the plaintiffs process server was unable to effect servic1.: of the summons and complaint upon defendant M ilonc at the mortgaged premtses. According to the affidavi t of the plaintiffs process server issued aHcr service was effrcted upon the tenant found at the mortgaged premises, the tenant advised that the owner did not reside at the mortgaged premises and was unknown to her as she paid her rent to an insurance company. [* 3] Deutsche Bank lational Trust v Milone Index No. 13935/2013 Page 3 The plainlifrs process server then attempted lO serve defendant Mi lone at rental properties purportedly owned by him or his insurance and real estate companies located in Farmingdale and West Babylon without success. A post office box, #339, in West Islip, ' .Y. 11795 was identified as one associated with the defendant Milone but was found to be owned by his wife and attempts to obtain information from her about defendant Milonc·s residence or business address were unsuccessful. The plaintiff then located a residence address of 130 Wagstaff Lane. Wcstlslip. N. Y., as a potential residence address for defendant Milone. I Iowever. an attempt to effect service there in August of 2013 was unsuccessful as the process server found the house uninhabited due to construction renovations. The plaintiff's inquiries to the Surrogate's Court in Suffolk County were negative and its search of New York State Department of Motor Vehicles records listed the 339 Post Of'ficc Box in West Islip as the defendant's address, which was owned by his wife. /\lier undertaking the above described due and diligent searche~ to ascertain the whereabouts of defendant Mi lone and engagement in the various unsuccessful service attempts at residence and business addresses uncovered in that search. the plaintiff moved (#001) for an order pursuant to CPLR 308(5) for an alternate means of service. That applic;ation, which included demands for leave to serve a supplemental summons with notice upon the defendant Milone by publication pursuant to CPLR 316 and service of the supplemental summons and the original complaint upon all those previously served by mail. the appointment of a guardian ad litem for defe ndant Milone and other relief. was granted by order dated January 8, 2014. Therein, the court directed that such order, together with the supporting papers which included the supplemental summons with notice, be filed prior to the date of the first publication and that service also be effected upon defendant Milone by service upon Kenneth Seidell, Esq .• who was appointed guardian ad litem and mi litary attorney for said defendant. The court rurther directed that all those previously served with the summons w1d complaint be served by mail with the supplemental summons and re-served with the original complaint. as no supplemental or amended complaint was attached to the rnoving papers, within 120 days oft he date of the order. In accordance with the tenns of the January 8. 2014 order. the plaintiff filed said order and the supporting papers on which it was based with the Clerk on January 17. 20 14 and thereafter cf'lcctcd due and timely service of the supplemental summons with notice hy publication in two newspapers pursuant to CPLR 316 upon defendant Milone. The plaimiff failed. however, to effect service or the original complaint upon defendant Milone by publication as contemplated by the January 8. 2014 order and service or the supplemental summons and original complaint upon the guardian ad Iitem/mili tary attorney and the defendants previously served with process within the 120 day time period directed by the court. Instead. the plaintiff separately lilcd the swpplcmental summons and exhibits with the Clerk on July 13. 2016. in response to wh ich. the guardian ad Iitem/military attorney appeared herein on be ha Ir of defendant Milone. [* 4] Deutsche Bank National Trust v Milone Index No. 13935/ 2013 Page 4 On July 27. 20 I6. the plaintiff mailed the original complaint lo defondant Milone at the West Islip Post Office Box address. together wi th the supplemental summons. and mailed the supplemental summons and complaint to those served with the o riginal summons and complaint and to the guardian ad I item/military attorney. In response to s uc h service, defendant Milone served an answer dated August 15, 2016, which was filed with the C lerk on August 16, 2016. Said answer was rejected as untimely by the plaintiff by notice dated and served o n August 25. 2016. By its motion (#002). the plaintiff seeks an order of reference upon the default of all those served with process, together with an order relieving the guardian ad !item/ military attorney of his liducinry office and the o ther relief outlined above. Defendant Milone cross moves (#003) for leave to compel acceptance o r his anS\·Ver pursuant to CPLR 2004 and 2005 and/or for leave to appear herein by service of a late a nswer upon a vacatur of his default in answering pursuant to CPLR 30 1'.2(d). First considered is the cross motion (#003) by defendant Milone for the relief demanded in his cross motion. In s upport thereof~ defendant Milone contends that he fi rst recei ved notice of this action following rece ipt of the plaintiffs mailing of the supplemental summons and original complaint to him at his residence address in West Islip, New York on July 27. 20 16. Oclcndant Milone further contends that service of his answer on August 15, 2016 was thus timely and that the plaintiff should be compelled to accept it. Alternatively, defendant Milone claims that his default in answering should be vacated on excusable default grounds for severa l reasons including that the plaintiff should have known defendant Milone's residence address since he was a llegedly engaged in loan modification ta lk s with the plaintiff in August of2014 and again in January of20 15. In con nection with this alternative application, defendant Milone submits papers allegedly forwarded to the plaintiff in connection with loan modification discussions in which the address at 130 Wagstaff Lane, West Is lip, New York was identified as his residence. Defendant Milone also contends that he has many potentially meritorious defenses to the plaintiffs claim fo r foreclosure and sale as evidenced by the sixteen affi rmative defenses set forth in the August 15. 2016 answer. verified. filed and served by his counsel. The plaintiff opposes the cross motion. Rejected as unmeritorious arc defendant Milonc's claim that service of his August 15, 2016 answer on that date was timely because he lirst received notice of this acti on in late July of201 <> fo llowing the plaintilr s mailing of the supplemental s ummons and compla int to defendant Milone a t the Post Office Rox #339 in West Islip on July 27, 20 16 . .I urisdi ction o ver the person ofdefondant was obtained by the plaintiffs service of the supplemental summons w ith notice by publication in the two newspapers designated by the court in its January 8, 2014 order. Such service was complete 28 days after the first publication which occurred in January of 20 14 (see CP LR 316 ). and. pursuant [* 5] Deutsche Bank National Trust v Milone lmlcx No. 13935/2013 Page 5 to the January 8. 2014 order, the Ii ling of proor of publication which occurred on February 21, 2014. Defendant's Milone's answer was thus due on or before March 22, 2014. The fact that the original complaint was not so served did not depriYe the court ofjurisdiction over defendant Milone nor <l id it extend his time to answer. The service a complaint is optional an<l is thus not necessary to effect jurisdiction over the person of a defendant (see CPLR 3 I 6: 320; 30121 bJ). It is the service of a summons with a complaint or with notice, not the service any pleading which may accompany the summons, that effects the jurisdictional joinder of a defendant to a lawsuit. Defendant Milone was not ycl in default when service of the supplemental summons was effected upon him by publication as he had never been served with the original smnmons. The label ··supplemental" summons reflected the addition of the notice content required by CPLR 316 that did not appear on the original summons. However, the complaint rema ined the same as no new or additional claims were interposed by the plaintiff. Accordingly, service of the original complaint upon defendant Milone by publication and by mail upon those previously served as directed in the January 8, 2014 order, was superfluous as no supplemental nor amended complaint was prepared or put before the cou11 at any time prior or subsequent to the issuance of the January 8, 2014 order (lf, CPLR 3012ra]). Accordingly, jurisdiction was duly obtained over defendant Milone upon the completion of service of the supplemental sununons with notice by publication on March 22, 2014. Service of the defendant's answer in July of 2016 was untimely and the plaintiffs immediate rejection of said answer as late obviated any notion of waiver. or or The remaining portions ofthe defendant 's cross motion wherein he seeks, in effect, a vacatur of his default in timely answering or an extension of time to serve his answer pursuant to CPLR 2004. 2005 and/or 3012(d) arc also lacking in merit. To be entitled to thi s relief, it was incumhent upon the defendant to demonstrate a reasonable excuse for the default and a meritorious defense to the action to demons trate ..excusable default" which requires a showing o f a reasonable excuse for the default and a demonstration of a potentially meritorious dcfonse (see Federal Natl. Mtge. Ass'u v Zapata. 143 AD3d 857, 2016 WL 6089221 Pd Dept 2016] : US Bank Natl. Ass'11 •' Dorestaul. I 3 I /\D3d 467. 15 YS3d 14212d Dept 2015 J: HSBC Bank USA, N atl. Ass'11 v Rotimi. 121 A03d 855, 995NYS3d8I12d Dept 2014J: Mm111i110 Dev., /11c. v Linares. I 17 AD3d 995. 986 YS2d 578 r2d Dept 2014]: Diederich v Wetzel. l 12 /\D3d 883, 979 NYS2d 60512d Dept 20 13]; Co1111111111i~)' Preserv. Corp. v Bridgewater Comlominiums, LLC, 89 /\D3d 784, 785, 932 NYS2d 378 l2d Dept 201 I J;Mello11 v/zmirligil, 88AD3d 930, 931NYS2<l667 !2d Dept2011 l: Well'> Farg0Ba11k,N.A. 11 Cerviui, 84 AD3d 789. 921 NYS2d 643 [2d Dept 2011 ]). T!hc material facts constituting the asserted meritorious defense must be advanced in an affidavit of the defrndant or a proposed verified answer attached to the moving papers (see Gershma11 v A li mad. 131 J\D3d 1104, 16 NYS3d 836 I2d Dept 2015]: Kara/i.'i •' New Di111e11sio11s IIR, Jue .. I 05 AD3d 707. 962 YS2d 64 7 [2d Dept 20 I} I). [* 6] Deutsche Bank National Trust v Milone Index No . 13935/2013 Page 6 or J\ review the cross moving papers of defondant Milone reveals that the material facts necessary to constitute each of the clements necessary for the granting o fleavc lo serve a late answ~r upon a vacatur of the dcfondanr s default in answering are not set forth therein. Moreover, the answer attached to the moving papers is veri fied by defense counsel and no facts constituting potentially meritorious dcfonses arc advanced in defendant Milone's affidavit in support of the cross motion. Accordingly. the cross motion (#003) interposed by defendant Milone is in all respects denied. Those portions of' the plaintiff's motion-in-chief(#002) in which it seeks an order identifying the true name of the unknown defendant John Doc as Rose Saccentc is granted pursuant to CPLR l 024. Also granted are those portions of the plainti tr s motion (#002) wherein it seeks an order dischargingKenncth Seidel I. Esq .. from his fiduciary office as Guardian Ad Litcm/Miliatry Attorney fo r defendant Milone. With respect thereto, and in accordance with the January 8, 20 l 4 order appointing attorney Seidell, the court hereby fixes the compensation for the services he rendered in such capacity in the amount of $250.00, which amount represents the reasonable value o f such services. The plaintiff shall remit said sum to Mr. Seidell within forty five (45) days of the date or this order. The court consic.Jers under CPLR 306-b and 316 the plaintiff's request for an order deeming service of process of the supplemental summons and complaint ··valid and effective, nunc pro tune", and hereby denies it. As ind icatcd above. the court acquired jurisdiction over defendant Mi lone upon the completion of the service of the filed suppl emental summon s with notice on March 22. 20 14. Service thereof and service or re-service of the original complaint was non jurisdictional in nature and s upreflous for the reasons set forth above. The court thus declines the plaintiff s invitation to ..deem" the plaintiff' s service of the supplemental summons and original complaint "valid and effective·· nunc pro tune. The remaining portions of the plaintiffs motion-in-chief (#002) wherein it seeks an order fixing the defaults in answering of the defendants served with process and a separate order appointing a referee to compute amounts due under the terms of the subject note and mortgage arc granted . The moving papers established that the plaintiff did not abandon the action within the contemplation or CPLR 32 l S(c) as it undertook proceedings within the one year time period from which an intent not to abandon the action is disccrnable (see A urora Lo"" Serv., LLC v Gross, l 39 J\D3d 7Tl, 32 NYS3d 249 f2cl Dept 2016'J). Even if it were otherwise, the plaintiff demonstrated good cause for the delay and a meritorious claim for foreclosure and sale (see L NJ 'Corp. v Forbes, 122 J\D3d 805. 996 NYS2d 696 l2d Dept 20141). [* 7] Deutsche Bank National Trust v Milone Index No . 13935/ 2013 Page 7 In addition, the moving papers further established the plaintiff's entitlement to the default judgments as they included due proof of the plaintiffs service of the summons and complaint and the defaults in answering on the part of the defendants served with process, including the defCndant mortgagor and the plaintiffs sufficient demonstration of the facts constituting the plaintiff' s claim for foreclosure and sale (see CPLR 32151 f] ; U.S. Bank Natl. Ass 111 v Wolnernum , 135 ADJd 850. 24 NYS3d 343 j2d Dept 20161; U.S. Bank N atl. Ass'n vA/ba , 130 AD3d 715, 11NYS2d864 l2d Dept 2015 J; HSBC Bank USA, N.A. v A lexa11der, I 24 AD3d 838, 4 NYS3d 47 [2d Dept 20151: Todd v Green, 122 AD3d 831 , 997 NYS2d 155 l2d Dept 20 14]: U.S. Bank, Natl. Ass'n v Razon, 115 AD3d 739, 981 NYS2d 571 f2d Dept 2014]; Triangle Prop. #2, LLC, v Narang 73 AD3d 1030, 903 NYS2d 424 f2d Dept 20101). lo defeat the plaintiff's facially adequate motion, it was incumbent upon defendant Milone to cslablish that there was no default in c.mswcring, due to ajurisd ietional defect or an abandonment of the plaintiffs claim, or that he possesses a reasonable excuse for the delay in answering and a potentially meritorious defense to the plaintiffs claims for foreclosure and sale (seCJ Deutsche Bank Natl. Trust Co. v Patrick. 136 AD3d 970, 25 NYS3d 364 [2d Dept 20 161 ; U.S. Bank Natl. Ass'11. v Wol11ermt111, 135 AD3d 850, supra: US Ba11k Natl. Ass 'n v Doresfa11t, 11 1 ADJd 467, supra~ Wells P'argo Bank, N .A . v Krauss. 128 AD3d 813, 10 NYS3d 257 l2d Dept 20 15J; Frie<l v Jacob /loldi11g, Jue., 110 AD3d 56. 970 NYS2d 260 [2d Dept 2013 ]). Upon review of the opposing papers, the court finds that the defendant failed to establish any grounds for a denial of the plaintiff's motion. In view of the foregoing, the plaintifrs motion (#002) for an order ofreferencc is granted while the cross motion (#003) by defendant Milone is denied. The proposed Order appointing a referee to compute, as mod ified by the court, has been marked signed. Dated: December (/ 20 16 J

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