Aurora Loan Servs. LLC v Adler

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Aurora Loan Servs. LLC v Adler 2015 NY Slip Op 31112(U) June 26, 2015 Supreme Court, New York County Docket Number: 115937/09 Judge: Joan A. Madden 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. [*i"ri 1] --- I , i SUPREF~E COURT OF THE STATE OF NEW YORK NEW Y0IR.K COUNTY g?)l./ q 1 ) li' fi , H8N. JOAN A. MADDEN PRESENT: ADLER, MEYER SEQUENCE NUMBER : 002 JUDGMENT OF FORECLOSURE & SALE - Exhibits INDEX NO. MOTION DATE MOTION SEQ. NO. ._ ,were read on this motion to/for The following papers, numbered 1 to Notice of MotionlOrder to Show Cause rf - Index Number : 115937/2009 AURORA LOAN SERVICES LLC vs. - . PART I " . L I W O Justice - Affidavits -Exhibits INo(s). Answering Af%davits IN W . L Replying A f i c M t 8 it is ordered that this motion is I - &Ybl%&A&#f ? n ' w .. - k 8 $3 E!= 3: ' I , J.S.C. Dated: ,/ ia I. 0 NON-FINAL DISPOSITION CHECK ONE ,.......,..,.......,.............,...................................~CASE DISPOSED 0DENIED 2. CHECK AS APPROPRIATE: ..,....,,..................MOTION IS: S G R NTED . 3. CHECK IF APPROPRIATE: &TLE ORDER ................................................ 0DO NOT POST - . a I --- IC." A . 0GRANTED iN PART c OTHER ] 0SUBMIT ORDER 0FIDUCIARY APPOINTMENT A 0REFERENCE [* 2] AURORA LOAN SERVICES LLC, INDEX NO. 1 159W07 Plaintiff. -againstMEYER ADLER, 59 WEST 128 HOLDING, LLC. HYPOTHECATORS MORTGAGE COMPANY, NEW YORK CITY ENVIRONMENTAL, CONTROL, BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU. NEW YORK CI'I Y 1'RANSIl AI_)JUI>LCA1'lON BUREAU, PEOPIh OF '!W3 STATk OF NE%' YORIC, Defendants. In this mortgage foreclosure action, plaintiff moves for ai1 order coniirming the Referee's Report of Ainoiiiit DLKand for a judgment of forcclosure and sale. Defendant mortgagor, Meyer Adler, opposes the inotioii and cross-inovcs for an order pursuant to CPLR 5015(a)(l) and (4). CPLR 3012(d) and CPLR 2004 vacating his default and extending his time to answer, and an order pursuant to CPLR 321 l(a)( I), (2), and (8) dismissing the complaint for lack of stranding, lack of personal jurisdiction and lack of' subject matter jurisdiction. On NoTrember 12, 2009, plainti!f coinrnciicect tliis action to forcclosc on a mortgage 111tllc amount of $502,000 0 1 thc 1 propcity located at 59 West 128'" Street in N m York C ity. Even though defendant Adler failed to serve and file an answer, mortgage foreclosure settlement conferences were sclieduled fi-om January 201 0 to October 201 1 By order datcd Octolier 27. 201 1, the mortgage foreclosure part remandcd the action to Trial Support altcr Acllcr failed to appeal for two corifcr-cricc dcspite ~ \ / ittl,i? iioticc. Plainii ff' SLibScqLleiitly Iilo\/cd ! i O 1 ii L ! ~ f ~ d t [* 3] judgmeiit a p i n s t ~ d i e and tht apj)oinlinent of a reierec to caiiiputc, and tni: motion r M ds gr:intc:d in December 2012. In or about Jaiiuary 20 14, plaintiff made the instant motion to coilfirin the referee’s report and for a judgment of foreclosure and sale. In April 20 14, Adler, appearing by counsel. opposed plaintifi’s motion and cross-moved to vacate his default, serve a late aiiswcr. and dismiss the complaint on various gromds. At tlie outset, thc court will concidcr Adier’s cross-motion. Adler first seeks to acate his default in failing to answer on jurisdictional grounds under CI’LR 501 5(a)(4). Adler asserts thc court lacks personal jurisdiction over him based 0 1 iinpropcr 1 service. It is well settled that a properly executed affidavit of service raises a presumption of proper service, and a mere conclusory denial of receipt is not enougli to rebut that presumption. & A’TM One, L I X v. Landaverde, 2 NY3d 472 (2004); Kilil 1. ’ Pfeffcl-, 94 NY2d 1 I S (1999); Slimani v. Citibank. NA. 47 AD3d 489 (1“ Dept 2008); Noi-tlierii \!. Hernandez, 17 AD3d 285 (1”Dept 2005); Aames Capital Corp v. Ford, 294 AD2d 134 (lstDept 2002); Fairinont I’undinc Ltd v. Stefansky, 235 AD2d 2 13 (1 Dept 1997). Here. the affidavit 01 service states that on November 17,2009, A d c r was served by delivering the suimiions and complaint to .‘Etha Doe (Housekeeper),” a person of suitable age and discretion at Adler’s dwelling place within tlic State of New York, 36 Olympia Lane, Monsey, NY 10952. A separatc affidavit of service states that copies oftlie papers M crc mailed to Adler at tlie same address on November 1 S, 2009. 11 support of this cross-motion, Adlei. siibiiiits a carcfiilll draficd ajficiavit that his 1 2 [* 4] with process because *EthaDoc’ iic;~erc o r ~ e y e d sI-Lniinonsand complaint to me.“ and “taiicci the to appreciate the importance. meaning and significance of the legal papers delivered 10 her due to her lack of-fluency in English, m d thus ncglcctcd to either haiid me the suiiiinons or aclvisc me oi its delivery to my residence.” Adler states that his housekeeper “could not be trustcd to comprehend and appreciate the importance of the legal documents which plaintiff’s process server allegedly handed to her,” which is “confirmed by her failure to convey the suninions to me or to otherwise inform me of its delivery to my home.” He further states that “I would have promptly appeared in this mattcr had I I1nown that plaintiff’s complaint had been dcljvcred to my house.” and “I only failed to appear because I bclieved that philitiff had never attempted to personally serve me with its suinixoiis aiid complaint.” Adler’s affidavit is insufficient to rebut the presumption of‘proper service. See ATM One, LLC v. Landaverde, supriz; IGlil t. Pfkffer. supra; Aames Capital cor^ v Ford, supra; Fairmont Funding Ltd Stcf’aiisky, supra. Contrary ~ 7 . LO Adlcr’s admittedly iiiistaltcn belief about personal service, plaintiff was not required to inalte any attempt to deliver the papers to him personally, as delivery to a person of‘suitable age and discretion at Adler‘s actual placc of residence propcrly effectuated service in accorddnce with CPLR 308(2). 11 the absence oi’aii 1 affidavit fioin his housekeeper, Adlel- fhils to raise aii issue of fact as to whether shc qualified ;is a person of suitable age and discretion mthorixd to accept service under CPLX 308(2). Significantly. Adler does not specifically state that he never received the suninions and complaint, does not deiiy receii iiig the inailed copies of !lie papers, aiid does not state that lie 1 as 1 unaware of this action until he iwxived thc instant motion papers. ‘fli~is. since Adlcr f l i i Is to rebut tile presuinption that sen ICC \ V ~ I S y-opcrly eil’ectuated as set forth 111 rile aflidmit of s e n ice. 3 [* 5] excuse for his default The only excuse be proffers i s l i s oljjection to service or proccss, which the court has already rejected. Absent ti rcasoiiablc c x c ~ i xthe court iicecl not rc,ic!i ihc tssuc 0 1 , whether he has a potentially mcritorious dcfcicnsc. & J-ribcca 'I'cchnolofg solutioiis. In,: Goldbcrg. 100 AD3d 536 (ls* Dept 2013); Bcrrdeck Admiral lnsurancc Co v. Marriott Int'l, Xiic. 17. Zablah. '05 AI1-3d 457 ( I '' I k p t 301 3): 79 A113d 572 (1 '' Dcpt 2010). lv q q r , c h i 17 N Y 3 d 708 (201 1); Calm v. f<ai,63 AD3d 578, 582 (1" Jlcpt 2009); Time Wai-nci Citj C:ablii Auto, Iiic, 5 AD3d 153 ( I " 1. Dcpt). l v app disiii 3 NY?d 656 (2004) lhus, Adlcr I S not I ri SLiIe cntltlcd to relief under CPLR 501 5(a)( 1). Adler further sccks rclicf pursuaiit to CPLR 3012(d) and CPI,II 2004 graiitiiiy l a \ c to 4 [* 6] disputes on the merits. & Cirdlo v M a w s, Inc, 6 i AD3d Equities LC, 57 AD3d 65, 81 ( 1 r - - I * C f ~ J , (I X - n/\,,n, ucpl AJWY), .Ioiies 1 . 414 Dept 2008). Considering the relevant factors. the court concludcs that Adler is not eiititlcd to s c r ~ a c late answer, as lie fails to provide an adequate cxcuse for his inordinate delay in anc~vering. Wliittemore v. Yeo, 99 AD3d 496 (1” Dept 2012). M o r e than four years elapsed between tlie time Adler was served in November 2009 and when he madc the instant cross-motion to vacate his default aiid serve a late answer 1 1April 1 2014. The record sho\vs that Adler does not rcside in the mortgaged premises, m d tbercfoi-e was not ciititled to a mandatory settlement coiifercncc. Nevertheless, the court held elevcii mortgage foreclosui e settlement conferelice from January 2010 to October 201 1. Adler does not deny plaintiff’s assertion that he participated i n several of those conferences. After Adler failed to appear for two settlement conferences, the action was remanded to this court. aiid plaintiff ~novcd a default judgment and the appointment of a for referee to coinpute; that motion mas granted in November 201 2. In January 2014, plaiiitiff niade tlie instant motion for a judginciit of foreclosure and sale. Only then. in response to plaiiitifl-s motion, did Adler for the first time in April 2014 seek to vacate his default aiid serve a late a m wer . As his cxplanatioii for r,ot ansu cring. Adlcr agaiii relics on his mistakcn belief thal lie was never served and his obj ectioii that his “non-liiiglisli spealting liouscltecper from N~iiigaq ’’ was not a person of suitable agc and discretion. Adlcr, however. does not explain why lie waited until April 2014 to scek relief aiid answei-, as clcaily lie u a s aware of the action and parlicipated 111 at least some of the settleiiient confeel-encesas early as 2010 or 20 1 1 . Evcn after the matter r 3 14 as [* 7] uiider the circuinstanccs presented, Adler ' s proffered explanarion is insufficient to excuse the lengthy and inordinate delay Adler likewise fails to establish that lie has a potentially meritorious dcfensc. While he asserts the court lacks subject mattcr jurisdiction on the ground that plaintiff lacks standing. Adler cites, Stark v. Goldberg, 297 AD2d 203 ( lstDept 2002). has been overrulcd. Moreover, I by defaulting and failing to timcly appear or answer, Adler "waiked any argumcnt tlia? plaintiff lacked standing to comnciice the actioii." U S . Baiik, N.A. v. Reriiabel, 125 AD3d 541 (1" Dept 201 5 ) ; accord Wells FarPo Bank. NA v. Edwarcls, 95 AD3d 692 (1" Dept 2012). In view ofthe foregoing, Adler has failed to establish d factual or legal basic lor vacating his default or granting leave to servc a late aiisu er', and as such, his cl-oss-motion is denied in its entirety. Plaintiffs motion is therefore granted aiid plaintiff is entitled to an ordcr confirming the referee's report and a judgineiit of foreclosure aiid sale. Settlc order and judgrnenl of foreclosure and salc on notice. 6

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