Submitted - January 30, 2018
D. Weiss, P.C., Melville, NY, for appellants.
Lovells U.S. LLP, New York, NY (Ryan Sirianni, David Dunn,
and Chava Brandriss of counsel), for respondent.
REINALDO E. RIVERA, J.P. ROBERT J. MILLER SYLVIA O.
HINDS-RADIX JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendants Stephen
Dedomenico and William Dedomenico appeal from (1) an order of
the Supreme Court, Nassau County (Thomas A. Adams, J.),
entered September 24, 2015, and (2) an order and judgment of
foreclosure and sale (one paper) of the same court entered
September 25, 2015. The order granted the plaintiffs motion
to confirm a referee's report and for a judgment of
foreclosure and sale, and denied the cross motion of the
defendants Stephen Dedomenico and William Dedomenico to
vacate an order of reference entered October 14, 2014, upon
their failure to appear in the action or answer the
complaint, and to dismiss the complaint insofar as asserted
against them, inter alia, for lack of personal jurisdiction
and lack of standing or, in the alternative, for leave to
serve a late answer. The order and judgment, upon the order,
inter alia, granted the motion, denied the cross motion,
confirmed the referee's report, and directed the sale of
the subject property.
that the appeal from the order is dismissed; and it is
further, ORDERED that the order and judgment of foreclosure
and sale is affirmed; and it is further, ORDERED that one
bill of costs is awarded to the plaintiff.
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with the entry of the
order and judgment of foreclosure and sale in the action
(see Matter of Aho, 39 N.Y.2d 241, 248). The issues
raised on the appeal from the order are brought up for review
and have been considered on the appeal from the order and
judgment of foreclosure and sale (see CPLR 5501[a]).
plaintiff commenced this mortgage foreclosure action against,
among others, the defendants Stephen Dedomenico and William
Dedomenico (hereinafter together the appellants). On October
14, 2014, the Supreme Court entered an order of reference,
upon the appellants' failure to appear in the action or
answer the complaint. Thereafter, the plaintiff moved to
confirm the referee's report and for a judgment of
foreclosure and sale. The appellants opposed the motion and
cross-moved to vacate the order of reference entered upon
their default and to dismiss the complaint insofar as
asserted against them, inter alia, for lack of personal
jurisdiction and lack of standing or, in the alternative, for
leave to serve a late answer. In an order entered September
24, 2015, the court granted the plaintiffs motion and denied
the appellants' cross motion. On September 25, 2015, the
court entered an order and judgment of foreclosure and sale,
inter alia, confirming the referee's report and directing
the sale of the property.
agree with the Supreme Court's granting of the plaintiff
s motion to confirm the referee's report and for a
default judgment of foreclosure and sale. "An applicant
for a default judgment against a defendant must submit proof
of service of the summons and complaint, proof of the facts
constituting the claim, and proof of the defaulting
defendant's failure to answer or appear" (HSBC
Bank USA, N.A. v Clayton, 146 A.D.3d 942, 944 [internal
quotation marks omitted]; see CPLR 3215[f];
Citimortgage, Inc. v Chow Ming Tung, 126 A.D.3d 841,
843; U.S. Bank, N.A. v Razon, 115 A.D.3d 739, 740).
Here, the plaintiff satisfied these requirements (see
U.S. Bank, N.A. v Razon, 115 A.D.3d at 740).
agree with the Supreme Court's determination to deny the
appellants' cross motion. Service of process upon a
natural person must be made in strict compliance with the
statutory methods of service set forth in CPLR 308 (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). "'[T]he failure to serve
process in an action leaves the court without personal
jurisdiction over the defendant, and all subsequent
proceedings are thereby rendered null and void'"
(Krisilas v Mount Sinai Hosp., 63 A.D.3d 887, 889,
quoting McMullen v Arnone, 79 A.D.2d 496, 499).
Here, however, the process server's affidavit of service
established, prima facie, that the appellants were served
with the summons and complaint pursuant to the delivery and
mailing requirements set forth in CPLR 308(2). Contrary to
the appellants' contention, their submissions in support
of the cross motion were insufficient to defeat the
presumption of proper service (see Kondaur Capital Corp.
v McAuliffe, 156 A.D.3d 778; U.S. Bank N.A. v
Telford, 153 A.D.3d 881, 881).
defendant seeking to vacate a default in answering a
complaint and to compel the plaintiff to accept an untimely
answer must show both a reasonable excuse for the default and
the existence of a potentially meritorious defense
(see CPLR 2004, 3012[d]; 5015[a]; Chase Home
Fin., LLC v Minott,115 A.D.3d 634; Community
Preserv. Corp. v Bridgewater Condominiums, LLC, 89
A.D.3d 784; Taddeo-Amendola v 970 Assets, LLC, 72
A.D.3d 677). Here, the appellants failed to demonstrate a
reasonable excuse because the only excuse they proffered was
lack of personal jurisdiction. Accordingly, they failed to
demonstrate their entitlement to vacatur of the order of
reference entered upon their default. Moreover, since the
appellants failed to demonstrate a reasonable excuse for
their default, it is unnecessary to consider whether they
sufficiently demonstrated the existence of a potentially
meritorious defense (see Citimor ...