Opinion
Index No. 623842/2017
10-29-2021
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR AMERICAN HOME MORTGAGE INVESTMENT TRUST 2005-4A, Plaintiff, v. Gregg LUBONTY, George Himmer Executor of the Estate of Florence H. Grunberg, the People of the State of New York, the United States of America, John Doe #1 Through John Doe #12, Defendants.
RAS Boriskin, LLC, Attorneys to Plaintiff, 900 Merchants Concourse, Suite 310, Westbury, NY 11590 LESTER & ASSOCIATES, P.C., Attorneys for Defendant, 600 Old Country Road, Suite 229, Garden City, New York 11530
RAS Boriskin, LLC, Attorneys to Plaintiff, 900 Merchants Concourse, Suite 310, Westbury, NY 11590
LESTER & ASSOCIATES, P.C., Attorneys for Defendant, 600 Old Country Road, Suite 229, Garden City, New York 11530
Robert F. Quinlan, J.
Upon the papers submitted (notice of motion with supporting papers, notice of cross motion with supporting papers and memorandum, and opposition to the cross motion) it is
ORDERED that defendant's motion seeking to dismiss the action as time barred is denied, and it is further
ORDERED that the part of the motion seeking to vacate the order of publication is granted, and it is further
ORDERED that the cross motion of plaintiff seeking an extension of time to serve the supplemental summons and amended complaint is granted and plaintiff is directed to serve the aforementioned pleadings within 60 days from the date of this order and then file proof of such service, and it is further
ORDERED that the part of defendant's motion seeking to dismiss the action for lack of personal jurisdiction is held in abeyance, and it is further
ORDERED that a conference by Microsoft TEAMS is scheduled for January 5, 2022 at 9:40 AM via Microsoft TEAMS to monitor the status of the action.
The facts of this action are articulated in the decision of the Court of Appeals ( Lubonty v. U.S. Bank National Assocation , 34 NY3d 250 ), which determined that an action involving the mortgage would be timely if commenced by December 18, 2017. As this foreclosure action was filed on December 14, 2017, it is deemed timely and that part of the motion seeking to dismiss as time barred is denied (id.).
Plaintiff effectuated service upon defendant by an order of publication, dated May 24, 2019. The granting of such service, pursuant to CPLR 308(5), was based upon the claim that after a diligent search for defendant, he could not be located, so that service under other methods articulated under CPLR 308 were impracticable. However, this submission was during the time that the order of the Appellate Division in the Article 15 of the RPAPL action was being appealed to the Court of Appeals and that defendant's attorney on the appeal was the same attorney herein. Defendant's counsel states that the office was never contact by plaintiff for contact information of the defendant to order to serve him.
In a similar case, Citimortgage Corp. v. Isler (48 AD3d 732 [2nd Dept. 2008] ), the Second Department noted that service by publication is permissible in a foreclosure action but only where the mortgagor is evading service. Here, there was no evidence that defendant was evading service, as his case was before the New York Court of Appeals (see U.S. Bank Nat. Ass'n v. Patterson , 63 AD3d 1545 [ 4th Dept. 2009] ). Furthermore, as noted in Isler , service by publication is the least effective method of providing notice to a party and that service upon his attorney provides a more effective methodology respecting due process requirements. In other words, the publication was not reasonably calculated to provide notice ( Shchukin OU v. Iseev , 195 AD3d 431 [1st Dept. 2021] ). Therefore, the motion seeking to vacate service based upon publication is granted.
However, the cross motion seeking an extension of time to serve the supplemental summons and amended complaint is granted pursuant to CPLR 306-b. The record does establish a diligence search for defendant by the process server. Moreover, the delay in commencing this action was due to the appeals related to defendant's Article 15 action. Furthermore, as the statute of limitation would now have run and plaintiff does have a meritorious case, the record shows both "good cause" to extend the time to serve and a basis to grant such extension "in the interest of justice" (see State of New York Mtge. Agency v. Braun , 182 AD3d 63 [2nd Dept. 2020] ). Therefore, in the exercise of discretion, the cross motion is granted and plaintiff has 60 days from the date of this decision and order to serve the defendant and then file appropriate proof of service (see Wachovia Bank, National Association v. Greenberg , 190 AD3d 1007 [2nd Dept. 2021] ).
In light of the granting of the cross motion, the issue of lack of personal jurisdiction must wait. A conference is scheduled to monitor the status of the action on January 5, 2022 before this part.
The foregoing constitutes the decision and order of the Court.