Opinion
No. 131723/2010.
03-06-2015
AURORA BANK FSB as Attorney-in-fact for U.S. Bank National Association as Trustee of the TP 12 Lehman Brothers Small Balance Commercial Mortgage Pass–Through Certificates, Series 2007–1, Plaintiffs, v. Edward DELLIPAOLI, a/k/a Edward Delli Paoli a/k/a Edward Gerald Delli Paoli, Gmq, Inc. Joseph Marotta, New York State Department of Taxation and Finance, New York City Department of Finance, and “John Doe NO.1” through “John Doe No. 20” inclusive, Defendants.
Opinion
Upon the foregoing papers, the motion (Seq. No. 005) of defendant GMQ, Inc., to dismiss the complaint pursuant to CPLR 3211(a)(8) and CPLR 3211(a)(10) is denied; plaintiff's cross motion (Seq. No 006) for leave to extend the time to serve pursuant to CPLR 306–b is granted in accordance with the following.
Presently before the court is the motion of defendant GMQ, Inc. (hereinafter, “GMQ”), appearing for the first time in this foreclosure action, which was commenced by filing on November 16, 2010. GMQ is the owner of record of the mortgaged premises, which are located at 129 New Dorp Plaza, Staten Island, New York. By way of background, on November 1, 2006, the prior owner of record, defendant Edward Delli Paoli, executed the subject mortgage and note in the principal sum of $550,000.00. He subsequently conveyed title to said premises to defendant GMQ, Inc. by deed dated February 27, 2008. On or about December 1, 2009, and continuing thereafter, Delli Paoli failed to pay the monthly mortgage installments and this action ensued.
In moving for dismissal of the complaint as against it pursuant to CPLR 3211(a)(8) and (a)(10), defendant GMQ claims that the Court (1) lacks personal jurisdiction over this corporate defendant, and (2) should not proceed in its absence, as it is a necessary and indispensable party to the instant foreclosure action. In this regard, it is argued that since GMQ acquired fee ownership of the subject property in 2008, prior to the filing of the Lis Pendens on November 16, 2010, its interest, including the right of redemption, will not be extinguished by the entry of any judgment of foreclosure and sale to which it has not been made a party.
In support of its motion, GMQ submits the affidavit of its owner, Giovanny Quintero, wherein he attests that (1) his “offices are located at 123 Mulberry Street, New York, New York”, (2) GMQ, Inc. was never served with process in this action, and (3) such service was made instead on GMC Real Estate, as evidenced by a certain affidavit of service filed in this action in the Richmond County Clerk's Office.
Said affidavit indicates that plaintiff's process server, Gerard Scully, effectuated service upon “GMC Real Estate s/h/a John Doe No. 1” on December 16, 2010 by delivering a copy of the summons and complaint in this matter to its office manager, Diana Schlotfeld, at 129 New Dorp Plaza, Staten Island, New York.
In opposition to plaintiff's cross motion, Mr. Quintero further attests that defendant Delli Paoli is not a principal of GMQ, but rather the corporation's Secretary as well as a tenant of the subject premises. Finally, according to Quintero, GMQ has not maintained an office at 503 Mosley Avenue on Staten Island for seven years.Pertinently, this is the address designated for the “service of process” that was apparently on file with the “State of New York–Department of State” (i.e., the Secretary of State) at the time this action was commenced.
The affidavit of service on GMQ, although not contained in the court file, is annexed to plaintiff's cross motion and, in the opinion of this court, constitutes prima facie evidence that this entity was properly served with process in accordance with CPLR 311(a)(1) and BCL § 306(b)(1) (see Mortgage Elec. Registration Sys ., Inc. v. Losco, ––– AD3d –––, 2015 N.Y. Slip Op 01250 ; Countrywide Home Loans Servicing, LP v. Albert, 78 AD3d 983, 984 ; Rosario v. Beverly Rd. Realty Co., 38 AD3d 875 ). More particularly, the affidavit of service of plaintiff's process server, J.R. O'Rourke, is legally sufficient to establish that on December 10, 2010, he delivered two copies of the summons, complaint and notice of pendency, together with the statutory service fee, to Chad Matice a Business Document Specialist l in the Office of the New York State Department of State. In addition, the related “Receipt for Service” issued by the Department of State indicates that GMQ's “service of process address” on file with the Secretary of State on the date of service (i.e., December 10, 2010) was 503 Mosley Avenue, Staten Island, New York.
While it is undisputed that the originals of the foregoing proofs of service were not filed in the Richmond County Clerk's Office, plaintiff maintains, by way of an excuse, that although service upon GMQ “was proper”, “[d]ue to a miscommunication between the process server and an attorney previously employed with plaintiff's counsel's law firm, [certain ... ] original affidavits of service were never filed with the Richmond County Clerk [ ]”. For this reason, plaintiff has cross moved for, inter alia, leave to file the original proofs of service nunc pro tunc as evidence of its proper and timely service of process upon two of the named defendants, to wit, GMQ Inc. and New York State Department of Taxation and Finance (see CPLR 306–b and CPLR 2001 ).
At the outset, it should be noted that defendant's misguided attempt to invalidate the alleged service of process upon the secretary of state pursuant to BCL § 306(b)(1) on the basis of plaintiff's admitted failure to file proof of service is of no avail since such a defect is not jurisdictional in nature (see e.g. Conde v. Zaganjor, 66 AD3d 947 ) and may be corrected or disregarded if no substantial right of a party will be prejudiced thereby (see CPLR 2001 ). More particularly, effective January 1, 1998, CPLR 306–b has “eliminated any mandatory filing of proof of service as part of the commencement procedure ... [even though] some statutes require the filing of proof of service as a step in making service complete'. Although not usually of jurisdictional magnitude, the completion' of service is significant because a defendant's time to respond does not begin to run until proof of service is complete. See CPLR 320(a). Thus, where the filing of proof of service is a prerequisite to the completion of service, a delay in filing will postpone the running of defendant's response time. Because the failure to timely file proof of service in such cases is almost always a mere irregularity, however, permission for a tardy filing nunc pro tunc ‘ is almost certain to be granted by the court. (Alexander, Practice Commentaries, Cons Laws of NY, Book7B, C306:1, p 103, [citations omitted] ).
In any event, this is not the case here, where GMQ was served by the personal delivery of process to the Secretary of State, as this defendant's agent, and, as such, “[s]ervice of process on such corporation [was] complete when the secretary of state [was] so served” (BCL § 306(b)(1), emphasis added ).
Consonant with the foregoing, it is the opinion of this Court that plaintiff's delay in filing these proofs of service is a mere procedural irregularity, and may be corrected by an order of this Court permitting the belated filing, nunc pro tunc (see Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 752–753 ; Discover Bank v. Eschwege, 71 AD3d 1413, 1414 ), or disregarded entirely (see CPLR 2001 ; see also CPLR 2004 [extensions of time generally] ).
As for the merits of the moving defendant's challenge to the service of process, it is well settled that in order to rebut plaintiff's prima facie evidence that GMQ was properly served with process pursuant to CPLR 311(a)(1) and BCL § 306(b)(1), said defendant was required to come forward with a sworn denial containing detailed and probative facts sufficient to overcome the affidavit of service and create a triable issue of fact (see U.S. Bank N.A. v. Losner, ––– AD3d ––––, 2015 N.Y. Slip Op 00869 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344 ; accord Rosario v. Beverly Rd. Realty Co., 38 AD3d 875 ). Here, GMQ's unsubstantiated and conclusory assertions that (1) “it was never served with a summons and complaint in this action”, and (2) its offices were not located at the registered address on file with the Secretary of State at the time of service (i.e., in December of 2010), are legally insufficient to rebut the contents of plaintiff's affidavit of service and raise triable issues of fact regarding the regularity of service. In this regard, the moving defendant's alleged failure to receive a copy of the summons and complaint from the Secretary of State was caused by its unexplained and admitted failure to inform the Secretary of State of its current address for seven or more years (see Gershman v. Midtown Moving & Stor., Inc., 123 AD3d 974, 975 ; Cruz v. Keter Residence, LLC, 115 AD3d 700, 701 ; Sussman v. Jo–Realty Corp., 99 AD3d 787,788 ).
Thus, this Court may reject GMQ's jurisdictional challenge without conducting a traverse hearing (see Mortgage Electronic Registration Systems, Inc. v. Losco, ––– AD3d ––––, 2015 N.Y. Slip Op 01250 ; Countrywide Home Loans Servicing, LP v. Albert, 78 AD3d 983, 984 ; NYCTL 2009–A Trust v. Tsafatinos, 101 AD3d 1092, 1093–1094 ; cf. Machovec v. Svoboda, 120 AD3d 772, 774 ).
Accordingly, it is
ORDERED, that the motion of defendant GMQ, Inc. for dismissal of the complaint as against it is denied in its entirety; and it is further
ORDERED, that plaintiff's cross motion is granted solely to extend nunc pro tunc its time to file proofs of service upon defendants GMQ, Inc. and, without opposition, the New York State Department of Taxation and Finance nunc pro tunc; and it is further
ORDERED, that plaintiff shall file said proofs of the service within 10 days of the service upon it of a copy of this Order with Notice of Entry.,