Opinion
619168/18
02-14-2020
NATIONSTAR MORTGAGE, LLC d/b/a Champion Mortgage Company, Plaintiff, v. Darralayn DONATUTI, Dennis Donatuti, Secretary of Housing & Urban Development, Millstone MRF, LLC, as assignee of Brookhaven Memorial Hospital Medical Center, Patchogue Properties, Inc., and Clerk of the Suffolk County Traffic & Parking Violations Agency, Defendants.
RAS BORISKIN, LLC, Attys. For Plaintiff, 900 Merchants Concourse, - Ste. 310, Westbury, NY 11590 ALFRED WALENDOWSKI, ESQ., Atty. For Defendant Dennis Donatuti 532 Broad Hollow Rd. - Ste. 111, Melville, NY 11747
RAS BORISKIN, LLC, Attys. For Plaintiff, 900 Merchants Concourse, - Ste. 310, Westbury, NY 11590
ALFRED WALENDOWSKI, ESQ., Atty. For Defendant Dennis Donatuti 532 Broad Hollow Rd. - Ste. 111, Melville, NY 11747
Thomas F. Whelan, J.
Upon the following papers numbered in the court's computerized e-file system 71 - 92 read on this motionto dismiss and cross motion for extension of time to serve ; Notice of Motion/Order to Show Cause and supporting papers 71-76 ; Notice of Cross Motion and supporting papers: 77-92 ; Opposing papers:; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this Order to Show Cause (#003) dated December 6, 2019 by defendant, Dennis Donatuti, seeking dismissal or, alternatively, leave to serve a late answer, is denied; and it is further
ORDERED that the cross motion (#004) by plaintiff for an order, pursuant to CPLR 306-b, authorizing an extension of time to serve defendant, Dennis Donatuti, is denied as moot; and it is further
ORDERED that any and all stays are hereby lifted; and it is further
ORDERED that plaintiff is directed to schedule the sale of the premises to take place within 90 days of the date of entry of this order.
This is an action for foreclosure on property situated in East Hampton. Plaintiff's motion for default judgments as against all defendants and appointing a referee to compute was granted, unopposed, on June 12, 2019 and the subsequent motion for an order confirming the referee's report and judgment of foreclosure and sale was granted, unopposed, on September 23, 2019. The plaintiff thereafter scheduled the foreclosure sale to take place on December 12, 2019. On December 6, defendant Dennis Donatuti, through counsel, presented the instant order to show cause to the Court for signature, seeking dismissal of the complaint pursuant to CPLR 3211(a)(8) or, alternatively, a traverse hearing to determine the validity of the service of process upon him or, alternatively, vacatur of the judgment of foreclosure and sale, vacatur of defendant's default, leave to serve a late answer, and a foreclosure settlement conference. The order was signed (Rebolini, J.S.C.) on December 6, 2019 and provided a stay of the foreclosure sale pending decision. The plaintiff has opposed the application, and cross moves (#004) for an extension of time to serve the defendant in the event the Court finds that service was not proper.
It is well settled that a "process server's affidavit of service constitutes prima facie evidence of proper service" ( Duran v. Milord , 126 AD3d 932, 7 NYS3d 176 [2d Dept 2015], citing Youngstown Tube Co. v. Russo , 120 AD3d 1409, 1409, 993 NYS2d 146 [2d Dept 2014] ; see Deutsche Bank Natl. Trust Co. v. Jagroop , 104 AD3d 723, 960 NYS2d 488 [2d Dept 2013] ; U.S. Bank N.A. v. Hossain , 94 AD3d 979, 979, 943 NYS2d 140 [2d Dept 2012] ). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits" ( Deutsche Bank Natl. Trust Co. v. Quinones , 114 AD3d 719, 719, 981 NYS2d 107 [2d Dept 2014] ; see City of New York v. Miller , 72 AD3d 726, 727, 898 NYS2d 643 [2d Dept 2014] ; Emigrant Mtge. Co., Inc. v. Westervelt , 105 AD3d at 897, 964 NYS2d 543 [2d Dept 2013] ; US Natl. Bank Assn. v Melton , 90 AD3d 742, 743, 934 NYS2d 352 [2d Dept 2011] ). A defendant's bare and unsubstantiated denial of receipt is thus insufficient to rebut the presumption of proper service (see US Bank Natl. Assn. v. Tate , 102 AD3d 859, 859—60, 958 NYS2d 722 [2d Dept 2013], citing Bank of NY v. Espejo , 92 AD3d 707, 708, 939 NYS2d 105 [2d Dept 2012] ; Aurora Loan Servs., LLC v. Weisblum , 85 AD3d 95, 103, 923 NYS2d 609 [2d Dept 2011] ; Deutsche Bank Natl. Trust Co. v. Hussain , 78 AD3d 989, 989, 912 NYS2d 595 [2d Dept 2010] ; Beneficial Homeowner Serv. Corp. v. Girault , 60 AD3d 984 [2d Dept 2009] ).
Here, Mr. Donatuti contends that he has resided in a nursing facility, which is to be considered his residence. Therefore, he opines, the substitute service which took place at the premises was not proper and, in the least requires a traverse hearing. The Court disagrees. To the extent that the defendant contends that where service took place is not his "residency" for purposes of CPLR 308(2), such is conclusory and unsupported. To effect the jurisdictional joinder of a defendant pursuant to CPLR 308(2), all that is required is the delivery of the summons "within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served 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 in an envelope bearing the legend ‘personal and confidential’ " (see CPLR 308[2] ). A temporary residence elsewhere or a temporary absence from the place designated by a defendant as his residence or dwelling place or usual place of abode which lacks the requisite degree of "permanence or stability" will not support a finding of jurisdictional infirmity in the service of process (see Tribeca Lending Corp. v. Crawford , 79 AD3d 1018, 916 NYS2d 116 [2d Dept 2010] ; Argent Mtge. Co., LLC v. Vlahos , 66 AD3d 721, 887 NYS2d 225 [2d Dept 2009] ; Dunn v. Burns , 42 AD3d 884, 839 NYS2d 894 [4th Dept 2007] ; Litton Loan Serv., LP v. Vasilatos , 7 AD3d 580, 777, NYS2d 165 [2d Dept 2004]; Northeast Sav., F.A. v. Picarello , 232 AD2d 384, 648 NYS2d 145 [2d Dept 1996] ).
In the face of the presumption of proper service, only a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service and require the court to schedule a traverse hearing (see Deutsche Bank Natl. Trust Co. v. O'King , 148 AD3d 776, 51 NYS3d 523 [2d Dept 2017] ; Sileo v. Victor , 104 AD3d 669, 960 NYS2d 466 [2d Dept 2013] ; Emigrant Mtge. Co. v. Westervelt , 105 AD3d 896, 964, NYS2d 543 [2d Dept 2013] ). Here, the defendant has failed to allege specific facts to rebut the statements in the affidavit of the plaintiff's process server and, thus, has not rebutted the plaintiff's prima facie showing that he was validly served with process pursuant to CPLR 308(2) (see HSBC Bank USA, N.A. v. Miller , 121 AD3d 1044, 1045, 995 NYS2d 198 [2d Dept 2014] ). Notably absent from defendant's submission is an affidavit of Darralayn Donatuti denying service or challenging her receipt of the documents on Mr. Donatuti's behalf. The defendant's conclusory allegations are insufficient in this regard and this branch of defendant's motion is therefore denied.
The portion of the motion (#003) wherein the defendant seeks a vacatur of his default in answering and leave to appear herein by service of an answer pursuant to CPLR 3012(d) is also denied. To vacate the default and compel plaintiff to accept service of an untimely answer pursuant to CPLR 3012(d), a defendant must establish both a reasonable excuse for his/her failure to answer and the existence of a potentially meritorious defense to the action (see CPLR 3012[d], 5015[a][1] ; US Bank N.A. v. Samuel , 138 AD3d 1105, 30 NYS3d 305 [2d Dept 2016] ; SDF8 CBK, LLC v. 689 St. Marks Ave., Inc. , 131 AD3d 1037, 16 NYS3d 463 [2d Dept 2015] ; Chase Home Fin., LLC v. Minott , 115 AD3d 634, 981 NYS2d 757 [2d Dept 2014] ). As established above, defendant has not sufficiently disputed the veracity or content of plaintiff's affidavit of service. Inasmuch as the defendant has failed to advance a reasonable excuse in support of his application to vacate the default in answering and for leave to extend his time to answer under CPLR 3012(d), it is unnecessary to address whether defendant has demonstrated a potentially meritorious defense (see BAC Home Loans Serv., LP v. Readon , 132 AD3d 790, 18 NYS3d 664 [2d Dept 2015] ; Citimortgage, Inc. v. Kowalski , 130 AD3d 558, 13 NYS3d 468 [2d Dept 2015] ; Emigrant Bank v. Wiseman , 127 AD3d 1013, 6 NYS3d 670 [2d Dept 2015] ).
The defendant's request for further settlement conferences is also denied. A conference was held on February 28, 2019, at which the defendants failed to attend. No further conferences are warranted. "Once a default has been declared and a loan's maturity has been accelerated, a mortgagee is not required to accept a tender of less than full repayment as demanded" ( Home Sav. of Am., FSB v. Isaacson , 240 AD2d 633, 659 NYS2d 94 [2d Dept 1997] ).
Based on the above, the defendant's motion (#003) is denied, and plaintiff's cross motion (#004) is denied as moot. The plaintiff is hereby directed to schedule the foreclosure sale to take place within 90 days of the date of entry of this order.