Wells Fargo Bank v Mondesir

[*1] Wells Fargo Bank v Mondesir 2006 NY Slip Op 51756(U) [13 Misc 3d 1210(A)] Decided on September 21, 2006 Supreme Court, Suffolk County Spinner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 21, 2006
Supreme Court, Suffolk County

Wells Fargo Bank N.A., Plaintiff,

against

Elisabeth Mondesir, EQUICREDIT CORPORATION OF AMERICA, WELLS FARGO BANK N.A. and JOHN MONDESIR, Defendants.



2005-26460



ATTORNEY FOR PLAINTIFF

Steven J. Baum P.C.

220 Northpointe Parkway

Suite G

Amherst, New York 14228

REFEREE

James Patrick McCarrick, Esq.

22 Charles Street

Centereach, New York 11720

ATTORNEY FOR DEFENDANT ELISABETH MONDESIR

Donna F. Akinrele P.C.

250 Fulton Avenue

Suite 506

Hempstead, New York 11550

Jeffrey Arlen Spinner, J.

The Defendant ELISABETH MONDESIR has made application to this Court, by Order To Show [*2]Cause granted August 11, 2006 (Hon. Ralph F. Costello, J.S.C.), for an Order (1) vacating the Judgment of Foreclosure & Sale granted on May 2, 2006, (2) vacating the foreclosure sale that was consummated on July 6, 2006, (3) directing the Plaintiff to reconvey title to the foreclosed premises back to said Defendant, and (4) awarding attorney's fees to said Defendant. The Defendant asserts that this Court was without jurisdiction over her person by virtue of a lack of service of the summons and complaint. The Plaintiff opposes the Defendant's omnibus application, asserts that service was proper and requests that the Court allow the proceedings to remain undisturbed.

The Defendant's application consists primarily of a document which purports to be the Affidavit of ELISABETH MONDESIR but which has actually been signed by Donna F. Akinrele Esq., the attorney for said Defendant. The Affidavit does have attached to it a Verification upon a separate page thereto which states that ELISABETH MONDESIR, the signer of the Verification, has "...read the foregoing Order, and know the contents thereof; the same is true to my own knowledge except as to matters therein alleged to be on information and belief, and as to those matters I believe it to be true." This is a most unusual situation, one that gives the Court pause to consider whether the Affidavit is that of the Defendant (in which case it will be considered on its face) or that of the Defendant's counsel (in which case it must be disregarded as being devoid of any probative value). In view of all of the submissions herein and casting the matter in a light most favorable to the pleader, the Court will consider the proffer as the Affidavit of ELISABETH MONDESIR and not as the Affidavit of counsel.

That being said, the crux of the Defendant's claim is that all proceedings herein should be declared null and void due to a lack of service of the initial process, thereby depriving this Court of jurisdiction. Though not stated in the application, it is apparent that the relief herein is sought by invoking the provisions of CPLR 5015(a)(4) and CPLR 317.

An examination of the Defendant's claim must begin with Section 5015(a)(4) of the Civil Practice Laws and Rules. This statute permits a party to seek relief from the terms of a judgment or order within certain stated parameters. The operative statute, CPLR 5015(a)(4), reads as follows:

"(a) On Motion. The court which rendered a judgment or order may relieve a party

from it on such terms as may be just, on motion of any interested person with such

notice as the court may direct, on the ground of:...

(4) lack of jurisdiction to render the judgment or order..."

In order for the Defendant to prevail, she must demonstrate that this Court was without jurisdiction to render the judgment. If she does so, then the judgment and indeed all proceedings herein are null and void ab initio and the proceeding must be dismissed, Shaw v. Shaw, 97 AD2d 403 (2nd Dept. 1983). Here, the Defendant affirmatively asserts, under oath, that she was never served with the summons and complaint. Indeed, Paragraph 4 of her Affidavit states verbatim as follows: "A copy of the summons and complaint in the above-entitled action was never served upon me, and therefore I never appeared, answered, or made a motion with respect to the complaint herein." The [*3]Defendant also states verbatim, in Paragraph 2 of her Affidavit, that "I reside at 62 Seneca Avenue, Dix Hills, New York 11746."

The official file maintained herein by the Clerk of Suffolk County has, as part thereof, an Affidavit of one Logan Thornton, which avers that service of the summons and complaint was effected upon one "John Mondesir" at 62 Seneca Avenue, Dix Hills, New York on November 14, 2005. This places the service of the summons and complaint squarely within the parameters of CPLR 308(2), the so-called "deliver and mail" method of personal service. Such service, to be valid, does not require the due diligence mandated by other sub-sections of CPLR 308 but it does mandate that service must be effected at the "...actual dwelling place or usual place of abode" [CPLR 308(2)] of the party to be servied. In this proceeding, the Defendant does not deny that she resides at the service address; in point of fact, she freely admits that the same is her residence, lending credence to the Affidavit of the process server.

A duly sworn affidavit of service by an indifferent person such a process server, sheriff, constable or other officer constitutes prima facie albeit rebuttable proof of due and proper service of the summons and complaint, Wieck v. Halpern 255 AD2d 438 (2nd Dept. 1999), Remington Investments Inc. v. Seiden 240 AD2d 647 (2nd Dept. 1997), Bankers Trust Co. Of California N.A. v. Tsoukas 303 AD2d 343 (2nd Dept. 2003). In order to overcome the presumption of regularity and therefore the presumption of valid service, the opposing party (here, the Defendant) must come forward with a sworn denial containing facts sufficient on its face to rebut the propriety of service. A sworn conclusory denial of service, without anything more substantial, is insufficient as a matter of law to rebut the presumption of valid service, Simmons First National Bank v. Mandracchia 248 AD2d 375 (2nd Dept. 1998). It follows logically then that the failure to assert specific facts to rebut the presumption of valid service is likewise legally inefficacious, Simonds v. Grobman 277 AD2d 369 (2nd Dept. 2000).

Here, the Defendant claims, without more, that she was never served with process sufficient to effectuate in personam jurisdiction herein. However, when viewed in toto, the statements and actions of the Defendant are diametrically opposed to this position. As previously set forth, although she denies service, the Defendant admits that she resides at the premises where service was effected. Moreover, an examination of the Defendant's moving papers as well as those interposed in opposition clearly demonstrate that service herein was proper. The Affirmation of Adam L. Gross Esq., counsel for the Plaintiff, demonstrates that as early as January 18, 2006, the Defendant contacted counsel for the Plaintiff and requested reinstatement figures, which apparently were provided to her in writing with an express caveat stating that "Your request does not stop the foreclosure proceedings from continuing." Moreover, another request for a payoff statement was, on May 16, 2006, addressed to Plaintiff's counsel by Defendant's present counsel. A review of all of the submissions by the Defendant reveals her position to be self-serving and lacking in credibility.

Alternatively, the Court may consider whether relief is appropriate under CPLR 317. That statute provides, in relevant part, as follows: [*4]

"A person served with a summons, other than by personal delivery to him...who does not

appear, may be allowed to defend the action within one year after he obtains knowledge

of the entry of the judgment...upon a finding of the court that he did not personally receive

notice of the summons in time to defend and has a meritorious defense."

Under this statute, the movant may apply to the court for relief only if he or she was served other than by personal service under CPLR 308(1). In addition, the application must be timely and the movant must demonstrate the existence of a meritorious defense. Since the language is both conjunctive and discretionary, the court may grant relief but only if there exists both a meritorious defense and a lack of personal service of the summons. If either prong is not satisfied, then relief cannot be granted.

It has already been established that the Defendant was not personally served, thereby satisfying the initial statutory requirement. Therefore, the Defendant may be accorded relief if there exists a meritorious defense to the Plaintiff's underlying action, Brockington v. Brookfield Development Corp. 308 AD2d 498 (2nd Dept. 2003). The Defendant need not conclusively prove the elements of the defense but must articulate a potentially meritorious defense with more than self-serving conclusions, Marinoff v. Natty Realty Corp. 17 AD3d 412 (2nd Dept. 2005), Peacock v. Kalikow 239 AD2d 188 (1st Dept. 1997).

A painstaking examination of the Defendant's affidavit fails to reveal the articulation of any meritorious defense to the Plaintiff's action. Indeed, a full scale review of the Defendant's entire application leads this Court to the inescapable conclusion that there exists no defense to the Plaintiff's action. This is amply evidenced by the Defendant's reference in paragraph 12 of her affidavit to "...my delinquent loan balance" coupled with copies of correspondence to her regarding the same together with her unsigned financial disclosure form, the proposed Contract of Sale and the multiplicity of references to a loan workout with the Plaintiff. Where, as here, there exists neither personal service nor a meritorious defense, the application must be denied, Halali v. Gabbay 223 AD2d 623 (2nd Dept. 1996), City & Suburban Federal Savings Bank v. Frank 243 AD2d 670 (2nd Dept. 1997), leave to appeal dismissed 92 NY2d 877.

This Court is, therefore, constrained to find that the application of the Defendant is wholly devoid of both legal and factual efficacy and cannot be sustained.

It is, therefore

ORDERED that the application of the Defendant ELISABETH MONDESIR shall be and the same is hereby denied in its entirety; and it is further [*5]

ORDERED that the Referee's July 6, 2006 sale of the property herein shall remain undisturbed.

Dated: 21 September 2006

Riverhead, New York

E N T E R:

______________________________________

JEFFREY ARLEN SPINNER, J.S.C.