Wilmington Trust, N.A. v Varacek

[*1] Wilmington Trust, N.A. v Varacek 2018 NY Slip Op 51360(U) Decided on September 27, 2018 Supreme Court, Suffolk County Quinlan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 27, 2018
Supreme Court, Suffolk County

Wilmington Trust, National Association, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE FOR MFRA TRUST 2014-2, Plaintiff, Gregory Varacek,

against

PAMELA VARACEK, MARY BREWER, Defendant(s).



605829/2015



BERKMAN HENOCH PETERSON PEDDY
Attorneys for Plaintiff
100 Garden City Plaza
Garden city, Ny 11530

GRAUSSO & FOY, LLP
Attorneyfor Defendant Pamela Varacek
8 West Main Street, Suite 5
Patchogue, NY 11772
Robert F. Quinlan, J.

Upon the following papers read on this motion for an order vacating the order of reference; Notice of Motion and supporting papers (Doc # 56-73); Affidavit in Opposition and supporting papers (Doc # 79-87); it is,

ORDERED that this motion by defendant Pamela Varacek for an order denying plaintiff's motion for judgment of foreclosure and sale, vacating the order of reference dated May 24, 2017, or in the alternative dismissing this action, is denied.

This is an action to foreclose a mortgage on residential real property known as 2 Wilson Street, Blue Point, Suffolk County, New York ("the property") given by defendants Gregory Varacek, Pamela Varacek and Mary Brewer. Gregory Varacek appeared, pro se, by service of an answer dated May 11, 2015. By order dated May 24, 2017 the court granted summary judgment striking Gregory Varacek's answer, granted default of the non-appearing, non-answering defendants, including defendant Pamela Varacek, and appointed a referee to compute. Judgment of foreclosure and sale was granted June 4, 2018.

By this motion defendant Pamela Varacek ("defendant") opposes the judgment of foreclosure and sale, to vacate the order of reference, and dismiss the action, arguing that she was no properly served. Plaintiff opposes the motion. As the motion was submitted after the court's order granting judgment of foreclosure and sale the court treat's defendant's application as one to also vacate the judgment of foreclosure and sale.

The affidavit of the process server constituted prima facie evidence of proper service pursuant to CPLR 308 (2) (see Carver Fed. Sav. Bank v Supplice, 109 AD3d 572 [2013]; Bank of NY v Espejo, 92 AD3d 707, 708 [2012]). In opposition, the affidavits submitted by the defendants were insufficient to rebut the presumption of proper service created by the process server's affidavit (see Carver Fed. Sav. Bank v Supplice, supra). Although the defendant demonstrated that service was effected on her then 13-year-old son, defendant failed to establish that her son was not "objectively . . . of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to [her]" (see Roldan v Thorpe, 117 AD2d 790 [2d Dept 1986]) and therefore, not a person of "suitable age and discretion" within the meaning of CPLR 308 (2) (see Marathon Structured Asset Sols. Tr. v. Fennell, 153 AD3d 511 [2d Dept 2017]). Further, in her affidavit defendant never denied receipt of the summons and complaint by mail as established by the affidavit of the process server (U.S. Bank, N.A. v Tauber, 140 AD3d 1154 [2d Dept 2016]; Nationstar Mortg. v Kamill, 155 AD3d 966 (2d Dept 2017); HSBC Bank USA v Whittier, 159 AD3d 942 [2d Dept 2018]). Defendant's application is denied.

This constitutes the Order and decision of the Court.

[*2]

Dated: September 27, 2018
_______________________________________
Hon. Robert F. Quinlan, J.S.C.