Opinion
Index No. 616248/2022 Mot. Seq. Nos. 001 - MD 002 - MD (moot)NYSCEF Doc. No. 72
03-19-2024
TRUMAN CAPITAL HOLDINGS, LLC, Plaintiff, v. DAVID S. OSTROVE A/K/A DAVID OSTROVE; TERESE OSTROVE A/K/A TERESE BARONE; RAYMOND A. TIERNEY, AS DISTRICT ATTORNEY FOR SUFFOLK COUNTY; WELLS FARGO BANK, N.A.; "JOHN DOE" AND "JANE DOE" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants.
FRIEDMAN VARTOLO, LLP Attys. For Plaintiff PM LAW PC Attys for Defs David & Terese Ostrove
Unpublished Opinion
MOTION DATE 2/28/23
SUBMIT DATE 10/28/23
Conf. Date: 5/9/24 at 9:30AM
CDISP Y___N_x_
FRIEDMAN VARTOLO, LLP
Attys. For Plaintiff
PM LAW PC
Attys for Defs David & Terese Ostrove
MEMO DECISION & ORDER.
THOMAS F. WHELAN, J.S.C.
Upon the following papers read on this motion to dismiss among other things and cross motion; Notice of Motion/Order to Show Cause and supporting papers NYSCEF Doc. 29 - 37; Notice of Cross Motion and supporting papers: NYSCEF Doc. 41-46; Opposing papers: 51 - 56; Reply papers NYSCEF Doc, 57: Other Supp tilings NYSCEF Doc 63-64, 68-69 (and after hearin75-76counsel in support and opposed-to the motion) it is,
ORDERED that this motion (#001) by defendants, David Ostrove and Terese Ostrove for dismissal, is denied; mid it is further
ORDERED that the cross-motion (#002) by the plaintiff seeking an extension of time to serve is denied as moot; and it is further
ORDERED that pursuant to CPLR 3211(f), defendants David Ostrove and Terese Ostrove Shall file an answer to this complaint within ten (10) days of the date of entry of this Order; and it is further
ORDERED that movant is directed to file anotice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(2).
This is an action for foreclosure on residential property situated in West Islip. In essence, on March 23, 2007, defendants David Ostrove and Terese Ostrove (hereinafter, the Defendants) borrowed $720,000.00 from plaintiffs predecessor in interest and executed a construction loan agreement, note and mortgage. The loan was thereafter modified by agreement dated April 1,2008, in which the defendants agreed to repay $640,000.00. On May 1, 2008 - over fourteen years ago-the defendants stopped making the payments due and owing, and the plaintiff began bearing the costs of tire property taxes and insurance. An action for foreclosure was therefore commenced on September 4, 2013 at Suffolk County Index Number 23736/2013. The Defendants filed an answer, through counsel, and motion practice followed. The action was ultimately dismissed by Order dated February 24, 2022 (Rouse, A.J.S.C.), wherein the Court granted the Defendants' motion for summary judgment on the basis that plaintiff failed to demonstrate compliance with RPAPL 1304.
Relying on the "savings provision" contained in CPLR 205(a) in effect at that time, the plaintiff commenced this action on August 17, 2022. On September 15, 2022, the Defendants, through counsel, filed the instant motion (#001) seeking dismissal of the complaint pursuant to CPLR 3211(a)(8) or 3211(a)(5) or, alternatively, a traverse hearing, or additional time to file an answer. The plaintiff opposed the application and filed a cross motion (#002) seeking an extension of time to serve the defendants in the event the Court finds in favor of the Defendants on the issue of Service. On December 30,2022, while the motion was pending decision, the Foreclosure Abuse Prevention Act ("FAPA," L 2022, ch 821) went into effect. The parties submitted supplemental briefs regarding its application to the instant case. The plaintiff addressed the timeliness of the action and its reliance on CPLR 205(a), and noted that application of FAP A would constitute an unconstitutional and improper retroactive application. The Defendants contend that FAPA is to be applied retroactively, and that CPLR 205(a) as amended by FAPA require that the action be dismissed as untimely.
Subsequent to the submission of the instant motion, this Court issued a Memo Decision and Order in US Bank National Assoc v Joerger (2024 WL 1061542, 2024 Slip Op 24075 [Sup Ct. March 8, 2024]), which addressed FAPA at length and concluded that "the amendments, if applied retroactively, would impair rights a party possessed when it acted, increase the party's liability for past conduct, and impose new duties with respect to transactions already completed," contrary to the holdings in Landgraf v USI Film Product, 511 U.S. 244 (1994) and Matter of Regina Metro. Co., LLC v New York State Div. of Hous. &Community Renewal, 35 N.Y.3d 332, 370 (2020). Thus, this Court's position is that FAP A and its amendments are to be applied prospectively to actions commenced on or after December 30, 2022, FAPA's effective date. This holding is in accord with that in US Bank v Speller (80 Misc.3d 1233(A), 2023 NY Slip Op 51153(U) [Sup Ct. October 31, 2023]) and Wilmington Trust v Gawlowski (201 N.Y.S.3d 605, 2023 NYSlip Op 23305 [Sup Ct. October 6, 2023]).
The Court thus reviews the Defendants' motion accordingly.
It is well settled that a "process server's affidavit of service constitutes prima facie evidence of proper service" (Duran v Milord, 126 A.D.3d 932, 7 N.Y.S.3d 176 [2d Dept 2015], citing Youngstown Tube Co. v Russo, 120 A.D.3d 1409, 1409, 993 N.Y.S.2d 146 [2d Dept 2014]; see Deutsche Bank Natl. Trust Co. v Jagroop, 104 A.D.3d 723, 960 N.Y.S.2d 488 [2d Dept 2013]; U.S. Bank N.A. v Hossain, 94 A.D.3d 979, 979, 943 N.Y.S.2d 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 A.D.3d 719, 719, 981 N.Y.S.2d 107 [2d Dept 2014]; see City of New York v Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Westervelt, 105 A.D.3d 896, 897, 964 N.Y.S.2d 543 [2d Dept 2013]; US Natl. Bank Assn, v Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352 [2d Dept 2011]). A defendant's bare and unsubstantiated denial of receipt is insufficient to rebut the presumption of proper service (see U.S. Bank Natl. Assn, v Tate, 102 A.D.3d 859, 859-60, 958N.Y.S.2d 722 [2d Dept 2013], citing Bank of NY v Espejo, 92 A.D.3d 707, 708, 939 N.Y.S.2d 105 [2d Dept 2012]; Aurora Loan Servs., LLC v Weisblum, 85 A.D.3d 95, 103, 923 N.Y.S.2d 609 [2d Dept 2011]).
The plaintiff has submitted affidavits of service which demonstrate that on August 18,2022, Defendant David Ostrove was personally served at his Westlslip residence pursuant to CPLR 308(1) (Affidavit [NYSCEF Doc. No. 14]). Service upon co-defendant Terese Ostrove also took place at that place and time, via substitute service upon Defendant Davud Ostrove, pursuant to CPLR 308(2) (Affidavit [NYSCEF Doc. No. 16]). In seeking dismissal of the complaint as against them pursuant to CPLR 3211(a)(8), the Defendants together allege that they "spent the week of August 18, 2022 vacationing at [their] rental property on Fire Island" (Affidavit, para. 1 [NYSCEF Doc. No. 31]), therefore service upon each of them could not have been accomplished as indicated. The Defendants further note that Defendant David Ostrove could not have been at the premises at that date and time, as he appeared on that date at Ocean Beach Village on Fire Island, as demonstrated by an email purportedly from personnel of the Ocean Beach Village Justice Court stating that he "appeared at the court on Thursday August 18, 2022 to discuss [his] case regarding [his] pending appearance on Saturday August 20, 2022" (Exhibit D [NYSCEF Doc. No. 36]).
The Court finds these assertions to be wholly conclusory. Notably lacking from the Defendants' submission is any affidavit or sworn statement from personnel of the Ocean Beach Village Justice Court confirming that defendant David Ostrove was at Court at the time of service on August 18, 2022. The Defendants also have not challenged the respective sworn allegations that a person fitting defendant David Ostrove's physical description was present at the residence at the time and accepted service (see Nationstar Mtge., LLC v Cohen, 185 A.D.3d 1039,1041, 128 N.Y.S.3d 574 [2d Dept.2020], citing Washington Mut. Bank v Huggins, 140 A.D.3d 858,35 N.Y.S.3d 127 [2d Dept 2016]). Additionally, neither Defendant has denied receiving the papers in the mail and thus have not "overcome the inference of proper mailing that arose from the affidavit of service" (see id).
In sum, "[t]he averments contained in the [respective defendants'] affidavit did not constitute a "'detailed and specific contradiction"' of the allegations in the process server's affidavit (Aurora Loan Services, LLC v Simon, 216 A.D.3d 716, 717, 189 N.Y.S.3d 535 [2d Dept 2023] citing Deutsche Bank Natl. Trust Co. v. Kenol, 205 A.D.3d 1004, 1005, 166 N.Y.S.3d 881 [2d Dept 2022][internal quotations omitted]). As such, these branches of the motion are denied.
The branch of Defendants' motion seeking dismissal pursuant to CPLR 3211(a)(5) is also denied. The Defendants contend that the mortgage loan was accelerated in 2013, and that the statute of limitations therefore expired in 2019. The plaintiff notes in response its reliance on the version of CPLR 205(a) in effect when plaintiff commenced the instant action. A party may rely on CPLR 205(a) ''provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period" (CPLR 205[a]). The provisions "provides an additional six months in which to recommence a prior action that has been dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits" (Wells Fargo Bank, NA. v Eitani, 148 A.D.3d 193, 195, 47 N.Y.S.3d 80 [2d Dept 2017]).
The Defendants contend that because they each were not properly served during the sixmonth extension, plaintiff is estopped from relying on the savings provision of CPLR 205(a). As noted above, however, the Defendants have not demonstrated that they were not properly served. The Defendants' motion is, therefore, denied. The plaintiffs cross-motion (#002) seeking an extension of time to serve is thus denied as moot.
Defendants David Ostrove and Terese Ostrove shall file an answer to this complaint within ten (10) days of the date of entry of this Order.