JP Morgan Chase Bank, N.A. v Birica
Annotate this CaseDecided on January 9, 2014
Supreme Court, Kings County
JP Morgan Chase Bank, N.A. AS TRUSTEE, C/O EMC MORTGAGE CORPORATION 800 State Highway 121 Bypass Lewisville, TX 75067, Plaintiff,
against
Constantina Birica; GMAC MORTGAGE, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR METROCITIES MORTGAGE LLC D/B/A NO RED TAPE MORTGAGE; NATIONAL CITY BANK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; AMANDA STEVENSON; CARLY BERUBETER; JONATHAN MEYER; KELLY WELBURN; MADELINE MARTINEZ; REBECCA ROBERTSON; Defendants.
26310/07
For Plaintiff JP Morgan Chase Bank, N.A. as Trustee
DOONAN,GRAVES & LONGORIA,LLC
100 CUMMINGS CTR STE 225D
BEVERLY, MA 01915
(978) 921-2670
For Defendant Constantina Birica
The Law Offices of Jaime Lathrop, P.C.
641 President Street Suite 202
Brooklyn NY 11215
(718) 857-3663
Francois A. Rivera, J.
By notice of motion filed on February 9, 2010, under motion sequence number two, [*2]plaintiff JP Morgan Chase Bank, N.A. as Trustee (hereinafter Chase) has moved for an order, among other things, executing a judgment of foreclosure and sale.
By notice of motion filed on January 17, 2013, under motion sequence number three, the defendant Constantina Birca (hereinafter Birica) has moved for an order: (1) vacating her default in appearing or answering the complaint; (2) permitting defendant to file a pre-answer motion to dismiss; and (3) dismissing the complaint due to lack of personal jurisdiction and plaintiff's lack of standing.
Chase has opposed the motion.
BACKGROUND
On July 18, 2007, Chase commenced the instant action to foreclose on a real property located at 346 Classon Avenue, block number 1948 and lot number 33 (hereinafter the subject property). The complaint alleges, among other things, that Birica is the record owner of the subject property and the individual who borrowed money and secured the loan with a note and a mortgage on the subject property. The complaint further alleges that the defendant has defaulted on the note.
Birica's instant motion seeks leave to vacate her default in appearing or answering the complaint and to dismiss the complaint pre-answer based on the plaintiff's lack of standing and failure to obtain personal jurisdiction over her.
Birica's affidavit in support of the motion avers that she did not received a copy of the summons and complaint in time to answer it because she resided at a specific address located in Rye, New York at the time that service was made to an address in Queens county. In opposition to the motion, Chase submitted, among other things, the affidavit of John J. McGuigan, its licensed process server. McGuigan averred that service was effected upon Birica to an address described as her dwelling and located in Rego Park, in Queens County by personal delivery to her daughter followed by a mailing to Birica at the same address.
Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served (see US Consults v APG, Inc., 82 AD3d 753 [2nd Dept 2011]; Washington Mut. Bank v Holt, 71 AD3d 670 [2nd Dept 2010]). While bare and unsubstantiated denials are insufficient to rebut the presumption of service (see 2 US Consults v APG, Inc., 82 AD3d 753 [2nd Dept 2011]; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2nd Dept 2009]), a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Engel v Boymelgreen, 80 AD3d 653 [2nd Dept 2011]).
Birica's affidavit was sufficient to rebut the presumption of proper service and to trigger the need for a traverse hearing. Consequently, on March 22, 2013, the court ordered a traverse hearing to be conducted on April 23, 2013. The traverse hearing was conducted and completed on April 23, 2013. John J. McGuigan, the licensed process server who served the commencement papers, was the only witness called by Chase to testify. Chase admitted into evidence McGuigan's affidavit of service and his invoice for the service job. McGuigan did not have his log book at the traverse hearing. Birica did not testify or admit any evidence. Birica moved for dismissal of the complaint after Chase rested based in part on McGuigan's failure to produce his log book.
By decision and order issued on April 23, 2013, the parties were directed to submit, on or [*3]before May 24, 2013, a memorandum of law pertaining the obligations under GBL § 89cc and NYCRR 208.29 of a licensed process server to maintain and produce a log book. The parties were further directed to appear in Part 52 on July 19, 2013 for further proceedings. Both parties complied.
By decision and order dated July 19, 2013, the parties were directed to submit proposed findings of fact to the court on or before September 3, 2013 pursuant to CPLR 4123.
Both parties complied. The court makes the following findings of fact.
FINDINGS OF FACT
On July 21, 2007, John J. McGuigan was a duly licensed process server with license number 826788 issued by the New York City Consumer Affairs Department and employed by Allstate Process Service of Deer Park, New York. On July 21, 2007, he personally delivered a copy of the Summons, Complaint, and Notice of Pendency with Diana Horhogea at 99-12 65th Road, Apartment 3L, Rego Park, New York. On July 25, 2007, he mailed a copy of the Summons, Complaint, and Notice of Pendency in an envelope addressed to Birica at the same location. On July 26, 2007, John J. McGuigan executed an affidavit of service. In February of 2012, John J. McGuigan retired and surrendered his process server's license.
On April 23, 2013, John J. McGuigan testified at the traverse hearing in this matter. He did not bring his process server's logbook or process server's license to the hearing. He testified that he had no present recollection of the events surrounding the service of the commencement papers in the instant action in July of 2007. He further testified that his testimony was based on the information contained in his affidavit of service.
John J. McGuigan further stated that he believed he asked and learned from the superintendent of the building that Birica resided at 99-12 65th Road, Apartment 3L, Rego Park, New York. The court credits McGuigan's testimony that he had no recollection of the facts and details of the service of the commencement papers upon Birica. Furthermore, the court finds that there is no admissible evidence establishing that the Rego Park address where the commencement papers were delivered and mailed was indeed Birica's dwelling. The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Gottesman v Friedman, 90 AD3d 608, 609 [2nd Dept 2011]). The plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (Emigrant Mortg. Co., Inc. v Westervelt, 105 AD3d 896 [2nd Dept 2013]). Chase has not met its burden to establish that the commencement papers were delivered or mailed to Birica's dwelling. Therefore, personal jurisdiction was not obtained over Birica pursuant to CPLR 308(2).
Accordingly, Chase's motion for an order, among other things, executing a judgment of foreclosure and sale is denied.
Birica's motion to dismiss the complaint based on lack of personal jurisdiction is granted and her motion to dismiss the complaint based on plaintiff's lack of standing is rendered moot.
The foregoing constitutes the decision and order of this Court.
Enter:
J.S.C.
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