Chase Home Fin. LLC v Adetula
Annotate this CaseDecided on August 23, 2011
Supreme Court, Queens County
Chase Home Finance LLC
against
Esther Adetula et al.,
5943/2009
For the Plaintiff: Rosicki, Rosicki & Associates, P.C., by Laura Strauss and Edward Rugino, Esqs., 26 Harvester Ave., Batavia, New York 14020
For Defendant Esther Adetula: David S. Harris, Esq., 88-32 Sutphin Blvd., Jamaica, New York 111435
Charles J. Markey, J.
In this foreclosure action, plaintiff moved for leave to appoint a referee to compute the sums due and owing it, and for leave to amend the caption, based upon defendants' default in appearing or answering the complaint. The notice of motion set the return date for September 7, 2010, but the motion was administratively rescheduled for September 16, 2010.
On September 16, 2010, defendant Adetula appeared at the motion calendar without an attorney and obtained an adjournment for the purpose of responding to the motion. Sometime prior to the final submission of plaintiff's motion, defendant Adetula retained counsel, who [*2]served, on her behalf, an answer with various affirmative defenses, including lack of personal jurisdiction. The answer, however, was rejected by plaintiff as untimely served, and as a consequence, defendant Adetula cross moved to vacate her default in appearing and answering, extend her time to answer the complaint and deem her answer to have been served timely, nunc pro tunc, and compel plaintiff to accept her answer. Defendant Adetula asserts that her default in appearing and answering the complaint is excusable due to improper service of process. She also asserts that she has a meritorious defense based upon her claim that she does not owe plaintiff "the amount of money sued for in the complaint." The proposed answer annexed to her cross motion papers includes eight affirmative defenses, including one based upon lack of personal jurisdiction as a result of alleged improper service, and four counterclaims.
In support of its motion and in opposition to the cross motion, plaintiff contends that defendant Adetula was properly served with process by service, pursuant to CPLR 308(2), and that she failed to appear, answer, or move with respect to the complaint within the required time period to do so (see, CPLR 320[a]). In addition, plaintiff contends that to the extent defendant Adetula asserts lack of personal jurisdiction as a result of improper service of process as a basis for her default in timely responding to the complaint, or in her proposed answer, she waived it as a defense, having "appeared" at a settlement conference on May 20, 2010, and at the motion calendar on September 16, 2010, without raising such defense.
Contrary to the argument of plaintiff, defendant Adetula has not waived the affirmative defense of lack of personal jurisdiction due to improper service of process. A defendant appears in an action by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer (see, CPLR 320[a]; NYCTL 1998-1 Trust v Prol Props. Corp., 18 AD3d 525 [2nd Dept. 2005]). Insofar as plaintiff rejected defendant Adetula's answer, the service of such answer cannot constitute an appearance on her behalf, and, in any event, it includes such a jurisdictional defense therein.
In addition, although it is true that a party who has not formally appeared may nonetheless be deemed to have appeared informally, and thus have conferred jurisdiction on the court despite his or her lack of a formal appearance, by actively litigating the merits of an issue without raising any jurisdictional objection (see, USF & G v Maggiore, 299 AD2d 341 [2nd Dept. 2002]; Roslyn B. v Alfred G., 222 AD2d 581 [2nd Dept. 1995]), such circumstance does not exist herein. The Court Attorney Referee, by order dated May 20, 2010, specifically noted that the case did not meet the criteria for holding a conference in the Residential Foreclosure Part, because defendant Adetula, a resident of the subject property (143-27 230th Place, Rosedale, Queens County, New York) was not liable on the subject note, and directed that the case proceed by an order of reference or motion. Thus, defendant Adetula cannot be considered to have litigated anything when she appeared at the court in response to the notice regarding the conference, never mind the merits. Defendant Adetula's appearance at the motion calendar in response to plaintiff's motion likewise cannot be considered to constitute litigation of the merits.
The affidavit of service dated March 20, 2009 of a licensed process server indicates that [*3]defendant Adetula was served on March 13, 2009, at 5:25 P.M., by service of a copy of the summons and complaint upon one "JOHN OTTO, COUSIN" at 143-27 230th Place, Rosedale, Queens County, New York, the "residence" of defendant Adetula, and that the process server thereafter mailed a copy of process to defendant Adetula at the same address. This affidavit constitutes prima facie evidence of proper service pursuant to CPLR 308(2) (see, Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2nd Dept. 2009]).
Defendant Adetula avers, upon the foregoing papers, that she never was served with a copy of the summons and complaint and did not receive a copy of the process. She also avers that she has no cousins (or aunts and uncles), and the only person who was residing at the premises on the date of the service of process was a female tenant, named "Elaine Perry," who lived upstairs. Defendant Adetula admits that a person named "Eric Davison" was staying with Ms. Perry in March 2009, but asserts that Mr. Davison's physical description does not meet that of "Mr. Otto," the purported recipient of the process. Defendant Adetula avers that Mr. Davison is 32-years old, stands 5'2" and weighs 135 lbs. Mr. Otto is described in the affidavit of service as being approximately, 45 years of age, 5'9" in height, and weighing 180 lbs.
Since defendant Adetula has raised a genuine question on the issue whether service was properly effected in accordance with the statute, the plaintiff must establish that the Court has jurisdiction over defendant Adetula by a preponderance of evidence at a hearing (see, Dime Sav. Bank of New York v Steinman, 206 AD2d 404 [2nd Dept. 1994]; Frankel v Schilling, 149 AD2d 657, 659 [2nd Dept. 1989]; see also, Chesman v Lippoth, 271 AD2d 567 [2nd Dept. 2000]; see generally Feinstein v Bergner, 48 NY2d 234, 241 [1979]).
Those branches of the cross motion by defendant Adetula seeking to vacate her default in appearing or answering the complaint, for leave to extend her time to answer the complaint and deem her answer to have been served timely, nunc pro tunc, and compel plaintiff to accept her answer, and the motion by plaintiff are held in abeyance pending the outcome of a hearing on the issue of the validity of service of process upon defendant Adetula.
The traverse hearing shall be held at the Supreme Court, Queens County, 25-10 Court Square, Long Island City, New York, on Thursday, October 27, 2011 at 2:15 P.M. in Part 32, Courtroom Room 140.
The foregoing constitutes the decision, order, and opinion of the Court.
Dated:August 23, 2011
J.S.C.
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