Opinion
01-21-2016
CARVER FEDERAL SAVINGS BANK, Respondent, v. SHAKER GARDENS, INC., et al., Appellants, et al., Defendants.
Kalter Kaplan Zieger & Forman, Woodbourne (Terry S. Forman of counsel), for appellants. Jaspan Schlesinger, LLP, Garden City (Scott B. Fisher of counsel), for respondent.
Kalter Kaplan Zieger & Forman, Woodbourne (Terry S. Forman of counsel), for appellants.
Jaspan Schlesinger, LLP, Garden City (Scott B. Fisher of counsel), for respondent.
Before: McCARTHY, J.P., EGAN JR., ROSE, LYNCH and CLARK, JJ.
EGAN JR., J. Appeals (1) from an amended order of the Supreme Court (Cahill, J.), entered June 21, 2013 in Sullivan County, which, among other things, granted plaintiff's motion for a deficiency judgment, and (2) from the judgment entered thereon.
In October 2009, plaintiff commenced this mortgage foreclosure action against, among others, defendant Shaker Gardens, Inc. and Shaker Gardens' president, defendant Yehuda Nelkenbaum, the latter of whom had executed a personal guaranty in conjunction with the underlying transaction. In December 2010, Supreme Court (Sackett, J.) issued a judgment of foreclosure and sale and appointed a referee; plaintiff thereafter purchased the property at a public auction in November 2011 for $4 million, leaving a deficiency of more than $5 million.
Plaintiff subsequently moved to confirm the report of sale and for leave to enter a deficiency judgment and, to that end, enlisted a process server to effectuate service upon Nelkenbaum. According to plaintiff, Nelkenbaum twice was served with a copy of the subject motion—once in a hallway of the U.S. Bankruptcy Court for the Eastern District of New York—located at 271 Cadman Plaza East in Brooklyn—in January 2012 and again approximately one month later in front of a residence in Brooklyn. Neither Shaker Gardens nor Nelkenbaum submitted papers in opposition to plaintiff's motion but, following the return date thereof, Nelkenbaum moved by order to show cause seeking a determination that he was not personally served. Supreme Court (Cahill, J.) then conducted a traverse hearing, at which Nelkenbaum elected not to testify. By amended order entered June 21, 2013, Supreme Court found that service of process upon Nelkenbaum was valid and thereafter entered judgment against, among others, Shaker Gardens, Nelkenbaum and defendant Shaker Heights Apartments (hereinafter collectively referred to as defendants) for approximately $3 million. Defendants now appeal.
Where a sworn denial of service is sufficient to raise a question of fact as to the content or veracity of an affidavit of service, a traverse hearing is required (see Finkelstein Newman Ferrara LLP v. Manning, 67 A.D.3d 538, 538–539, 889 N.Y.S.2d 147 [2009] ).
We affirm. A party seeking a deficiency judgment may, "[s]imultaneously with the making of a motion for an order confirming the sale, ... make a motion ... for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought or the attorney who shall have appeared for such party in the action. Such notice shall be served personally or in such other manner as the court may direct" (RPAPL 1371[2] ; see CPLR 308[1] ; D'Ambra v. Haynor, 293 A.D.2d 858, 859, 740 N.Y.S.2d 709 [2002] ). "If a defendant resists service of process, service may be effected pursuant to CPLR 308(1) by leaving a copy of the summons in the defendant's general vicinity, provided that the defendant is made aware that this is being done" (Hall v. Wong, 119 A.D.3d 897, 897, 990 N.Y.S.2d 579 [2014] ; see Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56 [1983] ; Personnel Sys. Intl. v. Clifford R. Gray, Inc., 146 A.D.2d 831, 832, 536 N.Y.S.2d 237 [1989] ). As a general proposition, "a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service" (Caci v. State of New York, 107 A.D.3d 1121, 1123, 967 N.Y.S.2d 440 [2013] [internal quotation marks and citations omitted]; accord Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 [2013], lv. dismissed 22 N.Y.3d 947, 977 N.Y.S.2d 175, 999 N.E.2d 538 [2013] ; see Kurlander v. Willie, 45 A.D.3d 1006, 1007, 845 N.Y.S.2d 180 [2007] ). Although a vague and unsupported denial of service is "insufficient to dispute the veracity or content of the [process] server's affidavit" (Owens v. Freeman, 65 A.D.3d 731, 733, 884 N.Y.S.2d 791 [2009], lv. dismissed 13 N.Y.3d 855, 891 N.Y.S.2d 688, 920 N.E.2d 93 [2009] ; see Kurlander v. Willie, 45 A.D.3d at 1007, 845 N.Y.S.2d 180 ), "where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence" (Wells Fargo Bank, NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254 [2009] ; accord Caci v. State of New York, 107 A.D.3d at 1123, 967 N.Y.S.2d 440 ; Emigrant Mtge. Co., Inc. v. Westervelt, 105 A.D.3d at 897, 964 N.Y.S.2d 543 ). Upon reviewing the record before us, and according due deference to Supreme Court's credibility assessments (see Caci v. State of New York, 107 A.D.3d at 1124, 967 N.Y.S.2d 440 ; Matter of DeMeo v. City of Albany, 63 A.D.3d 1272, 1272, 879 N.Y.S.2d 840 [2009] ), we are satisfied that plaintiff met that burden here.
During the course of the traverse hearing, the process server, Robert Urena, testified that he first attempted to serve Nelkenbaum following a court proceeding in January 2012. Urena waited in the hallway and, when the individual he believed to be Nelkenbaum exited the courtroom with an attorney, Urena approached the man and asked if he was Nelkenbaum. When the man refused to answer, Urena informed him that he had legal papers for him; when this individual did not accept the papers, Urena told the man that he was going to leave the papers and "dropped them at his feet." Urena thereafter completed an affidavit of service, wherein he described the individual served as a white male with black hair, glasses and a beard, approximately 45 to 55 years old, 5 feet 8 inches tall and weighing 190 to 200 pounds. A second attempt at service was made in February 2012 at a residence located at 970 East 18th Street in Brooklyn, at which time Urena observed "the same individual as in the courthouse ... coming out [of the residence] with a bicycle." Urena approached the man, asked if he was Nelkenbaum and, after receiving no response, informed the individual that he "had legal papers for ... Yehuda Nelkenbaum." When the man did not accept the papers, Urena again informed him that he would be leaving the papers and dropped them at the man's feet. Urena thereafter completed an affidavit of service, describing the individual served as a white male with brown hair, a mustache and a beard, approximately 40 to 50 years old, 5 feet 9 inches tall and weighing 190 to 200 pounds.
Contrary to defendants' assertions, the physical descriptions contained in the respective affidavits of service are substantially similar to one another and, further, parallel the physical description given by Urena—from memory at the traverse hearing—of the individual served on the dates in question. To the extent that defendants argue that there is insufficient proof that Urena served Yehuda Nelkenbaum (as opposed to a relative thereof), Urena plainly testified that—at least with respect to the February 2012 attempt at service—he informed the individual that he had legal papers for "Yehuda Nelkenbaum," and nothing in the record suggests that this individual made any attempt to correct Urena on this point (see TD Banknorth, N.A. v. Olsen, 112 A.D.3d 1169, 1171, 977 N.Y.S.2d 472 [2013] ). Further, the record reflects that although Nelkenbaum was in the vicinity of the courthouse at the time of the traverse hearing, he elected not to testify, thereby permitting Supreme Court "to draw the strongest possible inference against him that the evidence would allow" (Matter of Emmett RR. [Scott RR.], 134 A.D.3d 1189, 1191, 21 N.Y.S.3d 740 [2015] ; see Matter of Adam K. v. Iverson, 110 A.D.3d 168, 178, 970 N.Y.S.2d 297 [2013] ; Stein v. McDowell, 74 A.D.3d 1323, 1325, 905 N.Y.S.2d 242 [2010] ). Finally, to the extent that Nelkenbaum's driver testified that, following the January 2012 court proceeding and while Nelkenbaum was in the bathroom, "[s]omebody dropped something at me, mumbled something and walked away," thereby implying that Urena served the driver instead of Nelkenbaum, we defer to Supreme Court's credibility assessment of this witness—particularly in view of the fact that the physical description of Nelkenbaum's driver did not match the physical description of the individual set forth in Urena's January 2012 affidavit of service. In short, we are satisfied that plaintiff established—by a preponderance of the credible evidence—that Nelkenbaum was personally served in compliance with CPLR 308(1). Defendants' remaining contentions are either unpreserved for our review or lacking in merit.
ORDERED that the amended order and judgment are affirmed, with costs.
McCARTHY, J.P., ROSE, LYNCH and CLARK, JJ., concur.