U.S. Bank, N.A., as trustee for the MASTR Asset Backed Securities Trust 2006-FREI, appellant,
Raymond Cepeda, respondent, et al., defendants. Index No. 18931/07
- September 29, 2017
Oviatt Gilman LLP, Rochester, NY (KaterinaKramarchyk and
Yimell Suarez Abreu of counsel), for appellant.
M. LEVENTHAL, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Nassau County (William R.
LaMarca, J.), entered October 22, 2009. The order granted the
motion of the defendant Raymond Cepeda pursuant to CPLR
5015(a)(4) to vacate a judgment of foreclosure and sale of
that court entered September 25, 2006, upon his failure to
appear or answer the complaint, and, sua sponte, in effect,
directed the dismissal of the complaint.
that the notice of appeal from so much of the order as, sua
sponte, in effect, directed the dismissal of the complaint is
deemed to be an application for leave to appeal from that
portion of the order, and leave to appeal is granted
(see CPLR 5701[c]); and it is further, ORDERED that
the order is reversed, on the law, with costs, and the motion
of the defendant Raymond Cepeda pursuant to CPLR 5015(a)(4)
to vacate the judgment of foreclosure and sale is denied.
plaintiff commenced this action to foreclose a mortgage. The
defendant Raymond Cepeda (hereinafter the homeowner) failed
to appear or answer the complaint. A judgment of foreclosure
and sale was subsequently entered upon his default in
answering. The homeowner moved pursuant to CPLR 5015(a)(4) to
vacate the judgment of foreclosure and sale for lack of
personal jurisdiction. The homeowner asserted that the
plaintiff did not exercise due diligence in attempting to
make personal service on him before resorting to affix and
mail service pursuant to CPLR 308(4). The Supreme Court
granted the homeowner's motion, vacated the judgment of
foreclosure and sale and, sua sponte, in effect, directed the
dismissal of the complaint. We reverse.
pursuant to CPLR 308(4) may be used only where personal
service under CPLR 308(1) and (2) cannot be made with
"due diligence" (CPLR 308; see Deutsche Bank
Natl. Trust Co. v White, 110 A.D.3d 759, 759-760;
Estate of Waterman v Jones, 46 A.D.3d 63, 65). The
term "due diligence, " which is not defined by
statute, has been interpreted and applied on a case-by-case
basis (see Estate of Waterman v Jones, 46 A.D.3d at
the affidavit of the process server demonstrated that three
visits were made to the homeowner's residence, each on
different days and at different times of the day. The process
server also described in detail his unsuccessful attempt to
obtain an employment address for the homeowner, including
interviewing a neighbor. Under these circumstances, the
Supreme Court improperly concluded that the due diligence
requirement was not satisfied (see Lasalle Bank N.A. v
Hudson, 139 A.D.3d 811, 811; Wells Fargo Bank, NA v
Besemer, 131 A.D.3d 1047, 1048; JP Morgan Chase
Bank, N.A. v Baldi, 128 A.D.3d 777, 777-778; Wells
Fargo Bank, N.A. v Cherot, 102 A.D.3d 768; JPMorgan
Chase Bank, N.A. v Szajna, 72 A.D.3d 902; Lemberger
v Khan, 18 A.D.3d 447, 447-448).
the Supreme Court should not have granted the homeowner's
motion pursuant to CPLR 5015(a)(4) to vacate the judgment of
foreclosure and sale.
"[a] court's power to dismiss a complaint, sua
sponte, is to be used sparingly and only when extraordinary
circumstances exist to warrant dismissal" (U.S.
Bank, N.A. v Emmanuel,83 A.D.3d 1047, 1048; see
Downey Sav. & LoanAssn., F.A. v Trujillo, 142 A.D.3d
1040, 1042). Given the lack of any extraordinary
circumstances present in this case, the sua sponte dismissal
of the complaint was improper (see Downey Sav. & Loan
Assn., F.A. v Trujillo, 142 A.D.3d at 1042; Deutsche
Bank Natl. Trust Co. v Rauf,139 A.D.3d 789, 790;
Deutsche Bank Natl. Trust Co. v Ramharrack, ...