HSBC Bank USA, N.A. v Abass
Annotate this CaseDecided on June 29, 2011
Supreme Court, Queens County
HSBC Bank USA, N.A., etc., Plaintiff,
against
Andre Abass, Defendants.
11254/2008
Appearances of Counsel:
For the Plaintiff: Shapiro, DiCaro & Barak, LLC, by Ellis M. Oster, Esq., 250 Mile Crossing Blvd., Rochester, New York 14624
For the Defendant Andre Abass: Alice A. Nicholson, Esq., 60 Irving Place, Brooklyn, New York 11238
Charles J. Markey, J.
The following papers numbered 1 to 12 read on this motion by defendant Andre Abass to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1), (2) and (3), to dismiss the complaint for improper service of process, to dismiss the complaint pursuant to CPLR 3211(a)(1), (3), (7) and (10), to dismiss the complaint for failure to comply with RPAPL 1303, 1304 and 1320, and CPLR 3408, to cancel the notice of pendency, and to direct the cancellation of the assignment of mortgage executed by one "Scott Anderson" on April 23, 2008, or for leave to serve and file a late answer pursuant to CPLR 3012(d).
Papers Numbered
Order to Show Cause - Affidavits - Exhibits....................................................1-5
Answering Affidavits - Exhibits........................................................................6-8
Reply Affidavits.................................................................................................9-12
In this foreclosure action, plaintiff obtained a judgment of foreclosure and sale against defendant Abass based upon his default in appearing or answering the complaint. [*2]Defendant Abass seeks to vacate the judgment of foreclosure and sale, claiming, among other things, improper service of process.
Upon the foregoing papers, that branch of the motion, is, in effect, made, pursuant to CPLR 5015(a)(4), to vacate the judgment and set aside the sale on the ground of lack of personal jurisdiction due to improper service of process. The affidavit of service, dated May 7, 2008, of a licensed process server, indicates service of process upon defendant Abass, by delivery of a copy of the summons and complaint to "NARUPA RAMDASS/RELATIVE" on May 7, 2008, at 5:05 A.M. at 12610 101st Avenue, South Richmond Hill, in Queens County, New York, as the dwelling place or usual place of abode of Andre Abass, and by a subsequent mailing, on May 7, 2008 of a copy of the summons and complaint to defendant Abass at the same address. Such affidavit is sufficient to establish prima facie evidence of proper service upon defendant Abass, in accordance with CPLR 308(2) (see, Granite Mgt. & Disposition v Sun, 221 AD2d 186, 186-187 [1st Dept. 1995]; Skyline Agency, Inc. v Ambrose Coppotelli, Inc., 117 AD2d 135, 139 [2nd Dept. 1986]).
Defendant Abass, in his reply papers, states that he "reside[s]" (present tense) at 120-62 144th Street, Jamaica, Queens County, New York. Defendant Abass, however, does not deny that the 101st Avenue address was his dwelling place or usual place of abode on the date of the service of process (see, CPLR 308[2]; cf. Austin v Tri-County Memorial Hosp., 39 AD3d 1223 [4th Dept. 2007]). Defendant Abass's unsubstantiated denial of service of the summons and complaint is, furthermore, insufficient to warrant a hearing on the issue of the propriety of the service (see, Manhattan Sav. Bank v Kohen, 231 AD2d 499 [2nd Dept. 1996], lv. to appeal denied, 91 NY2d 802 [1997]). Those branches of the motion by defendant Abass to vacate the judgment, pursuant to CPLR 5015(a)(4), based upon lack of personal jurisdiction as a result of alleged improper service of process is denied.
With respect to those branches of the motion to vacate the default judgment and dismiss the complaint, CPLR 5015(a)(1) requires the movant to proffer a reasonable excuse for the default and to demonstrate a meritorious defense to the action (see, Foley Machinery Co. v Amaco Const. Corp., 126 AD2d 603 [2nd Dept. 1987]). Defendant Abass, however, has failed to establish any reasonable excuse for his default, insofar as he has failed to proffer any excuse other than the unsubstantiated one underlying his jurisdictional defense, i.e., that he was not served with process. Furthermore, even if the motion was treated as one made pursuant to CPLR 317, defendant Abass has failed to establish he did not receive the summons in time to defend the action (see, CPLR 317; Burnett v Renne, 32 AD3d 449 [2nd Dept. 2006]). The Court, therefore, need not reach the issue of whether defendant Abass has a meritorious defense to the action (see, [*3]Deutsche Bank National Trust Co. v Rudman, 80 AD3d 651 [2nd Dept. 2011]; Maspeth Federal Sav. and Loan Assn. v McGown, 77 AD3d 889 [2nd Dept. 2010]; Burnett v Renne, 32 AD3d 449, supra). That branch of the motion by defendant Abass to vacate the judgment of foreclosure and sale and dismiss the complaint is, accordingly, denied.
That branch of the motion by defendant Abass requesting, in effect, an extension of time to serve a late answer, pursuant to CPLR 3012(d), is denied as he has not established a reasonable excuse for his failure to timely serve an answer (see, C & H Import & Export, Inc. v MNA Global, Inc., 79 AD3d 784 [2nd Dept. 2010]; 599 Ralph Ave. Dev., LLC v 799 Sterling Inc., 34 AD3d 726 [2nd Dept. 2006]; Elite Limousine Plus, Inc. v Allcity Ins. Co., 266 AD2d 259 [2nd Dept. 1999]).
That branch of the motion to vacate the judgment, based upon CPLR 5015(a)(2), is denied. The remedy of vacatur under CPLR 5015(a)(2) is limited to actions which have been tried to conclusion (see, William E. McClain Realty, Inc. v Rivers, 144 AD2d 216 [3rd Dept. 1988], lv. to appeal dismissed, 73 NY2d 995 [1989]).
With respect to that branch of the motion to vacate the judgment, based upon CPLR 5015(a)(3), defendant Abass asserts the default judgment entered against him was based upon the alleged "fraud, misrepresentation, or other misconduct" of plaintiff (CPLR 5015[a][3]). Defendant Abass alleges that the plaintiff obtained the default judgment through "intrinsic fraud," i.e., that plaintiff's allegations as to the assignment of the mortgage and the affidavit of merit are "fake, flawed or fraudulent" (see, Morel v Clacherty, 186 AD2d 638, 639 [2nd Dept. 1992]), rather than through "extrinsic fraud," which is "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter" (Shaw v Shaw, 97 AD2d 403 [2nd Dept. 1983]). Defendant Abass, however, has failed to show a reasonable excuse for his default (see, Bank of New York v Lagakos, 27 AD3d 678 [2nd Dept. 2006]). As a consequence, that branch of the motion, pursuant to CPLR 5015(a)(3), by defendant Abass to vacate the judgment is denied.
With respect to defendant Abass's contention regarding the plaintiff's lack of compliance with RPAPL 1304, this action was commenced on May 5, 2008, prior to the effective date of the original version of that statute (see, L 2008, c 472, § 2, eff. September 1, 2008). To the extent defendant Abass asserts plaintiff failed to comply with the requirements of RPAPL 1303, the affidavit of service dated May 7, 2008, establishes proper service on defendant Abass of the RPAPL 1303 notice with the statutorily-required content, printed in the required type size on colored paper (see, former RPAPL 1303 [L 2007, c 154, § 13, eff. July 3, 2007]; see also Aurora Loan Services, LLC v Weisblum, AD3d , 923 NYS2d 609 [2nd Dept. 2011]). Again, defendant [*4]Abass's bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service created by the affidavit of service (see, Aurora Loan Services, LLC v Weisblum,AD3d, 923 NYS2d 609, 612, supra).
To the extent that defendant Abass asserts that plaintiff has failed to comply with CPLR 3408, the judgment of foreclosure and sale was obtained prior to August 5, 2008, the effective date of CPLR 3408 (see L 2008, ch 472, § 3), and as a consequence, defendant Abass was not entitled to a settlement conference prior to the entry of judgment (see, Countrywide Home Loans, Inc. v Septimus, 31 Misc 3d 1238(A) [2011], 2011 WL 2202010, 2011 NY Slip Op 51030(U) [Sup Ct Queens County 2011] [decision by the undersigned]; LaSalle Bank Nat. Assn. v Novetti, 24 Misc 3d 1206[A], 2009 WL 1810511, 2009 NY Slip Op 51285(U) [Sup Ct Suffolk County 2009]).
Defendant Abass has failed to demonstrate the existence of fraud, collusion, mistake, or misconduct that would permit the setting aside of the sale of foreclosure (see, Astoria Federal Sav. & Loan Assoc. v Hartridge, 58 AD3d 584, 585 [2nd Dept. 2009]; see also, Guardian Loan Co. v Early, 47 NY2d 515 [1979]).
The branch of the motion by defendant Abass to cancel the notice of pendency is denied as moot. The branch of the motion by defendant Abass to direct cancellation of the assignment of mortgage dated April 23, 2008 is denied.
The foregoing constitutes the decision, opinion, and order of the Court.
______________________________________
J.S.C.
Dated: June 29, 2011
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