Ocwen Loan Servicing, LLC v Morgan
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Ocwen Loan Servicing, LLC v Morgan 2016 NY Slip Op 32547(U) November 25, 2016 Supreme Court, Suffolk County Docket Number: 35834-10 Judge: Thomas F. Whelan 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. [* 1] COPY MEMO DECISION & ORDER INDEX No. 35834-10 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 33 - SUFFOLK COUNTY PRESENT : Hon. THOMAS F. WHELAN Justice. of the Supreme Court ---------------------------------------------------------------){ OCWEN LOAN SERVICING, LLC Plaintiff, -againstAL VIN MORGAN, VINCENT McLEOD and "JOHN DOE # I" through "JOHN DOE #1 O", the last ten names being fictitious and unknown to the plaintiff, the person or parties, if any, having or claiming an interest in or lien upon the Mortgage premises described in the Complaint, MOTION DATE: 8/ 12/ 16 SUBMIT DATE: l 114116 Mot. Seq.# 003- MD CDISP: Yes HOUSER & ALLISON, APC Attys:For Plaintiff 60 East 42nd Street - Suite 1148 New York, NY 19165 ANDREA S. GROSS, ESQ. Atty. For Moving Defendant McLeod 205-47 Linden Blvd. St. Albans, NY 11412 McCARTHY & McCARTHY, ESQS. Attys. For Defendant Morgan 132 Fifth Ave. Kings Park, NY 11754 Defendants. ----------------------~----------------------------------------){ Upon the following papers numbered 1 to _8_read on this motion for a stay of the impending sale, a vacatur of the of judgment of foreclosure and sale and dismissal of the action; Order to Show Cause and supporting papers LJ; Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers 7-8 ; Replying Affidavits and supporting papers ; Other ; (1111d 11fte1 hem inll, eotmsel iii st:tppott and opposed to the motion, it is ORDERED that this motion (#003) by defendant, Vincent McLeod, for an order staying the impending sale of the premises, vacating the judgment of foredosure and sale and dismissing the complaint is considered under CPLR 5015(a)(4) and 5015(a)(l) and is denied. The plaintiff commenced this action on September 23, 2010 to foreclose a June 5, 2007 mortgage given by defendants, Alvin Morgan and Vincent McLeod, in connection with their purchase of residential real property in Farmingdale, New York. The mortgage was given as security for a note ofthe same date in the principal amount of$39 I ,500.00 that was executed solely by defendant Morgan. [* 2] Ocwcn Loan Servicing. LLC v Morgan ct al Index o. 35834/2010 Page 2 In response to the plaintiJf s service of the summons. complaint and the separate RP/\PL § 1303 notice upon defendant, Al vi n Morgan, on October I 1, 20 I 0, said delCndant appeared herein by answer dated October 29. 2010. The moving defendant. Vincent McLeod. was served at the mortgaged premises with copies of those same papers on October 12, 2010, pursuant to CPLR 308(2) by delivery thereofto Beverly ll gis, a co-tenant of defendant McLeod. Jn response to such service. defendant failed to appear herein by answer. Notwithstanding his non-appearance herein by answer, defcndant Mel ,eod appeared herein by attorney, Vincent S. A laimo. pursuant to a notice of appearance dated August 17. 2011 which was filed with the court. This appearance reflects that attorney /\lairno appeared with, or on behalf defendant McLeod, at the CPLR 3408 settlement conference that was scheduled and held on /\ugust 17, 2011, by quasi judicial personnel assigned to the specialized mo11gagc foreclosure conforcnce part of this court. At the conclusion of the conforence, the matter was marked '·conference held" and the action was assigned to the civi I case inventory of this part on August 22, 20 l 1, as no settlement was reached. In /\pril of 20 13, the plaintiff moved (#001) for summary judgment against answering dclCndant Morgan and a default judgment against moving defendant McLeod. together with the appointment of a referee to compute amounts due under the terms of the note and mo11gage. That motion. which was opposed by defendant Morgan. was granted in Memo Decision and Order of this court dated July 29, 20 13 and a referee was appointed in separate order of the same date. The default in answering of defendant Mcleod was therein fixed and determined pursuant to CPLR 3215 and RP/\PL § 1321. On 17ebruary 6. 2016, the plaintiffs uncontested motion (#002) for an order confirming the report of the re force to compute and for the issuance of a judgment foreclosing the lien of the subject mortgage and directing a sale of the mo1tgagcd premises was granted by this court. The referee of sale appointed therein scheduled the public sale of the premises pursuant to the terms of the j udgment for July 21. 20 16. One day prior thereto. defendant McLeod interposed the instant motion (#003) for a stay of the impending sale, vacatur of the February 16. 20 I 6 judgment and a dismissal of the complaint on jurisdictional ground~ due to purportedly defective service of the summons, complaint and other initiatory papers upon him. The instant motion (#003) is interposed by delCndant McLeod on papers prepared by new counsel and is predicated upon claims by defendant McLeod that he was never served with process and that the court lacks jurisdiction over his person. In an affidavit uttached to the mov ing papers, in which defendant McLeod claims personal knowledge of the facts asserted therein, he avers that he is a defendant. co-owner of the premises which is the subject of this action which the plaintiff commenced on September 23. 20 I 0. Continuing, the defendant avers that he was never served with process by the plaintiff. its process server or by f3cvcrly lgis, the person to whom process was delivered so to cflect service upon defendant McLeod at the mortgaged premises pursuant to CPLR 308(2). The defendant also avers that he res ides at the mortgaged premises with his three children and that Beverly lgis is not a co-occupant of his residence and is unknown to the defendant 's family. He fu1ther avers that on the [* 3] Ocwcn Loan Servicing. l.LC v Morgan ct al Index No. 35834/20 I 0 Page 3 date and time or service, no-one was home because the defendant was on vacation in Florida at the Miami Carnival. /\!though defendant McLeod docs not deny receipt ofthc mailing of the summons. complaint and other documents pursuant to CPLR 308(2), he denies receipt of the nrni ling required by CP LR 3215(g). Defendant McLeod goes on to allege that "it is my belief that the Plaintiff and his attorneys misrepresented facts to me and this court .. (see page one and two of the defendants· affidavit). This affidavit does not identify the venue where it was taken and the signature page containing the signature is not referable to the two page content portion of the affidavit. In her anirmation in support of the instant motion, defense counsel characterizes her clicnr s affid avi t as one containing averments that --he fwd no knowledge. record or information suflic:ient to Ji>rm Cl heliefthat an action \lll/S being commenced against his rs ic), as Plaintiff and its agents failed to personally deliver a copy of the Notice, Summons and Complaint to the Defendant or a person or suitable age and discretion" Iemphasis addedl. Thi s more expansive charactcri1..ation of the moving defendanrs factual avcrments is of concern to this comt as the de fon dant did not expressly assert that he was unaware oftbe commencement or pendency of this action. Of more concern to the court is that the above quoted facts contained in counsel's affirmation arc belied by the appearance of her client by attorney. Vincent S. Alaimo, Esq., at the settlement conference conducted on J\ugust 17, 2011. a fact which current defense counsel failed to reveal to the court in the motion papers put before it. While the court considers these circumstm1ces and others apparent from the affinnation of defense counsel lo border on irresponsible or fri volous advocacy (see generally, U.S. v Slzy11e, 2007 WL 1075035 lSDNY 20071), it will nonetheless consider the merits of the moving defendant 's claims for relief. J\s indicated above, the claim of a Jack of jurisdiction over the moving defendant is premised upon unsubstantiated allegations that the person to whom process was delivered, namely Beverly lgis. is not a co-occupant of his residence and is unknown to the defenda111 '.\family and that she didn"t redeliver the summons and complaint to defendant McLeod lt is further prem ised upon the unsubstantiated claim that the moving defendant was on vacation at the time or such service and that no-one was at the residence at that time. However, all that is required to effect the jurisdictional joinder or a defendant pursuant to CPLR 308(2) is delivery of the summons "within the state to a person of su itable age and discretion at the actual place of business, dwelling place or usual place or abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at hi s or her actual place of business in an envelope bearing the legend 'personal and conlidential'' (CPLR 308l2 I). Accordingly. there is no statutory requirement that the person to whom the summons was delivered on behalf of the defendant reside al the premises where such service ,.,·as effected (see Bank of N. Y. v t :v1ejo, 92 J\D3d 707, 939 YS2d 105 [2d Dept 20 121). Nor is there any requirement for the re-delivery of the summons and complaint to the defendant by the person upon whom the service was effected (see CPLR 308(21; see also Vincent C. Alexander, Practice Commentaries McKinney's ConsLaws of NY Book 78 CPLR 317: 1). The court thus finds that the moving delcndant' s claims of a failure on the part of the plaintiff to efJect due service of process upon him arc insurticient to warrnnt dismissal or the complaint or a traverse hearing on the issue of service. [* 4] Ocwcn Loan Servicing, LLC v Morgan ct al Im.lex 1 o. 35834/20 I 0 Page 4 The defendant's claims for a discretionary vacatur or his default arc also rejected as unmeritorious. The vacatur of a default on an excusable default ground that is expressly provided by statute is available under CPLR 317 to all persons to whom the summons with notice ancVor complaint were delivered to the defendant or his or her agent other than by personal delivery under CPLR 308( I) (see E ugene Di Lore11w, In c. v A.C. D11tto11 Lbr. Co., 67 Y2d 138, 501 NYS2d 8 fl9861). !\ dclcnc.lant moving under CPLR 317 must establish that he or she did not personally receive notice of the summons in time to deiend and that he or she possesses a meritorious defense to the claim of the plaintiff. No demonstration of a reasonable excuse is neccssa1y, since the statute itself provides for same, namely, non-receipt of personal notice of the summons in time to <lefenc.I (id.). However. the mere denial of receipt of the summons and complaint is insufficient to establish lack of notice or the action in time to defend for the purpose of CJ>LR 317 (see Hamilto11 Public R elatio11s v Scie11tivity, LLC, 129 AD3d I 025, 12 NYS3d 23412d Dept 2015]: Capital Source vAKO Med., P.C , 110 /\D3d 1026, 973 NYS2d 794 pd Dept 2013]; Wt1ssertheilv Elburg, LLC, 94 AD3d 753, 754, 941 NYS2d 679 r2d Dept 2012 I). If the motion is timely made and is granted, the moving defondant will be allowed to appear in the action and ddcnd upon the merits and if successful in such defense, tht: court may order restitution as if any judgment rendered therein was reversed or modi lied on appeal (see CPLR 317: Marou v Crystal Bt1y Imports, Ltd. , 99 AD3d 867, 952 NYS2d 602 l2d Dept 2012 I). An affidavit of merit by the moving defendant or a proposed answer, verified by defendant containing assertion of facts which potentially constitute at least one bona fide defense, must thus be attached to the motion papers (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of the State of Pe1111sylva11ia. 16 AD3d 391, 791 NYS2d 145 [2c.I Dept 2005 J; Tlrnk11rdyt1I v 341 Scholes St., LLC, 50 A03d 889, 855 NYS2d 641 l2d Dept 2008); J/illd1111 Corp. v Scarboro Textiles, Jue., 73 /\02d 535, 422 NYS2d 417 fl st Dept 1979 J). !\second statute which provides for the vacatur of defaults on excusable default grounds is CPLR 50105(a)( I). To succeed under this statute, the movant must establish a reasonable excuse for the default and a demonstration of a potentially meritorious defense. the material facts of which. must be arc advanced in an affidavit of the defendant or proposed verified answer attached to the moving papers (see Gershman v Ahmad. 131 AD3d 1104 16 NYS3d 836 f2d Dept 20 161; Citimortgage, Ju e. v Kowalski, 130 AD3d 558 13 NYS3d 468 f2d Dept 20 151; Wells Fargo Bank, N.A . v Combs. 128 AD3d 812, 10 NYSJd 121 l2d Dept 2015]; E*Trt1de Ba11k v Vasquez . 126 AD3d 933. 7 1 YS3<l 285 [2d Dept 20151: Karalis v New Dime11sio11s HR, luc.. 105 /\D3d 707, 962 NY '2d 647 r2d Dept 2013 1 Citimortgage,!11c. vStover, 124 /\03d 575, 2 NYS3d I 47 j2d Dept 2015l;Jefferso11 v Net usii, : 44 /\D3d 621. 843 '-JYS2d 158 l2d Dept 2007]). Where the only excuse offered by the defendant is a claim of improper service which has been found to be unmeritorious. vacatur of the dcfoull is unwarranted (see U.S. Bank, Natl. Ass '11. l' Smitlr, 132 /\D3d 848. 19 NYS3d 62 I2d Dept 2015 J: Com1111111ity W. Ba11k, N.A. vStephe11. 127 /\03d 1008, 9 NYS3d 275 l2d Dept 2015]: U.S. Ba11k Natl. Assoc. v Harding. 124 AD3d 766, 998 NYS2d 66712d Dept 20141: JISBC Bank v Miller. 121 AD3<l I 044, 995 NYS2d 198 I2d Dept 2014 l; Deutsche Bank Natl. Trust Co. v Pietmaico, l 02 AD3d 724. 957 NYS2d 868 f2<l Dept 2013 J: Tadeo Co11str. C<Jrp. v Allstate J11s. Co.. 73 AD3<l I022. 900 NYS2d 687 [2d Dept 20101). [* 5] Ocwcn Loan Scn· icing, I.LC v Morgan ct al Index No. 35834/20 I 0 Page 5 I !ere. the court linds that the moving papers '"'ere insufficient to establish the defendant's entitlement lo relief under CPLR 317 or C'PLR 50 I 5(a)( I). The mere denial of receipt of' the summons und complaint was insunicient to establish defendant McLeod's lack of notice in time to defend as required by CPl.R 3 I 7. In addition. because McLeod"s only offer of a reasonable excuse was the unsuccessful claim of a lack or due service, relief pursuant to CPLR 5015(a)(J) is not warranted. Moreover counsel· s assertion that her client possesses a myriad of meritorious defenses is procedurally defective and substantively lacking in merit under both statutes, as no affidavit of by defendant McLeod addressing the proposed meritorious defenses or proposed verified answer likewise addressing any such defenses was attached to the moving papers (see HSBC /Ja11k USA v Desrouilleres, I 28 AD3d I 013, 11 NYS3d 93 [2d Dept 2015]). Finally, the defondant's claim of a purported failure to comply with the notice requirements of CPLR 32 I5(g)(3) is unavailing. ft is well established that a failure to supply a CPLR 32 I 5(g)(3)(i) is not jurisdictional in nature and is unavailable to a defendant, like defendant McLeod, who has failed to establish discretionary grounds for the vacatur of his default (see Hami/1011 Public Relations v Scie111ivity, LLC, 129 A03d 1025. supra: Castle v Ava11ti, Lid., 86 /\D3d 531, 532. 926 N YS2d I69 12d Dept 2011): Peck v Dybo Realty Corp., 77 /\D3d 640, 641. 908 YS2d 36412d Dept 20101; Mauro v 1896 Stillwell Alie., Jue .. 39 AD3d 506, 833 NYS2J 206 (2d Dept 200TI). In view of the foregoing, the instant motion (#003) by defendant McLeod for the relief outlined above is denied. ,... DATED: November '.1~)- 2016
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