Petroff & Amshen LLP, Brooklyn, NY (Serge F. Petroff,
Steven Amshen, and David R. Smith of counsel), for appellant.
McCabe, Weisberg & Conway, New Rochelle, NY (Kiyam J.
Poulson of counsel), for respondent.
WILLIAM F. MASTRO, J.P. JOHN M. LEVENTHAL BETSY BARROS
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Tausif A. Latif
appeals, as limited by his brief, from so much of an order of
the Supreme Court, Richmond County (Minardo, J.), dated
November 19, 2015, as denied those branches of his motion
which were pursuant to CPLR 5015(a)(4) to vacate a judgment
of foreclosure and sale of the same court dated February 2,
2010, entered upon his failure to appear or answer the
complaint, and pursuant to CPLR 3211(a)(8) to dismiss the
complaint insofar as asserted against him.
that the order dated November 19, 2015, is reversed insofar
as appealed from, on the law, without costs or disbursements,
and the matter is remitted to the Supreme Court, Richmond
County, for a hearing and, thereafter, a new determination of
those branches of the motion of the defendant Tausif A. Latif
which were pursuant to CPLR 5015(a)(4) to vacate the judgment
of foreclosure and sale dated February 2, 2010, entered upon
his failure to appear or answer the complaint, and pursuant
to CPLR 3211(a)(8) to dismiss the complaint insofar as
asserted against him.
plaintiff commenced this action to foreclose a mortgage
against, among others, Tausif A. Latif. The Supreme Court
issued a judgment of foreclosure and sale dated February 2,
2010, upon his failure to appear or answer the complaint. In
or around October 2015, Latif moved, inter alia, pursuant to
CPLR 5015(a)(4) to vacate the judgment of foreclosure and
sale and pursuant to CPLR 3211(a)(8) to dismiss the complaint
insofar as asserted against him. In an order dated November
19, 2015, the Supreme Court denied Latif's motion. Latif
appeals from so much of the order as denied those branches of
of process upon a natural person must be made in strict
compliance with the statutory methods of service set forth in
CPLR 308" (FV-1, Inc. v Reid, 138 A.D.3d 922,
923; see Washington Mut. Bank v Murphy, 127 A.D.3d
1167, 1174; Emigrant Mtge. Co., Inc. v Westervelt,
105 A.D.3d 896, 896-897). "A defendant's eventual
awareness of pending litigation will not affect the absence
of jurisdiction over him or her where service of process is
not effectuated in compliance with CPLR 308"
(Washington Mut. Bank v Murphy, 127 A.D.3d at 1174).
Thus, "[a] defect in service is not cured by the
defendant's subsequent receipt of actual notice of the
commencement of the action" (Emigrant Mtge. Co.,
Inc. v Westervelt, 105 A.D.3d at 897).
the affidavit of a process server constitutes a prima facie
showing of proper service" (FV-1, Inc. v Reid,
138 A.D.3d at 923; see Scarano v Scarano, 63 A.D.3d
716, 716). "However, 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"
(Deutsche Bank Natl. Trust Co. v DaCosta, 97 A.D.3d
308(4) provides that when service upon an individual under
CPLR 308(1) and (2) cannot be made with due diligence,
service may be made "by affixing the summons to the door
of either the actual place of business, dwelling place or
usual place of abode within the state of the person to be
served and by either mailing the summons to such person at
his or her last known residence or by mailing the summons by
first class mail to the person to be served at his or her
actual place of business" (see Estate of Waterman v
Jones, 46 A.D.3d 63, 65-66).
the process server's affidavit of service established,
prima facie, that Latif was served with process pursuant to
CPLR 308(4) (see Scarano v Scarano,63 A.D.3d 716).
However, in his affidavit submitted in support of his motion,
Latif asserted that, at the time of the alleged service, he
lived not at the address recited in the affidavit of service
as being his dwelling place, but at the mortgaged premises.
Latif also submitted other evidence that tended to show that
he lived at the mortgaged premises at the time of the alleged
service. He submitted the mortgage, which contained a
provision obligating the borrower, Latif, to occupy the
mortgaged premises for a certain period of time, and
correspondence relating to the loan that was addressed to him
at the mortgaged premises. Further, Latif submitted material
that called into question the veracity of the process server.
Under the circumstances of this case, there must be a hearing
on the issue of whether Latif was properly served (see ...