Opinion
14896/2013
03-12-2019
BANK OF NEW YORK MELLON fka the Bank of New York, as Trustee for the Certificate-Holders of CWABS Inc., Asset-Backed Certificates, Series 2006-25, Plaintiff, v. Darien L. JOHNSON; Maureen G. Mulvey; Pinnacle Credit Services, LLC, Defendants.
Brian P. Nelson, Esq., Davidson, Fink, Cook, Kelly, Attorneys for Plaintiff, 28 East main Street, Suite 1700, Rochester, NY 14614 Ivan E. Young, Esq., Young Law Group, PLLC, Attorney for Defendant Mulvey, 80 Orville Drive, Suite 100, Bohemia, New York 11716
Brian P. Nelson, Esq., Davidson, Fink, Cook, Kelly, Attorneys for Plaintiff, 28 East main Street, Suite 1700, Rochester, NY 14614
Ivan E. Young, Esq., Young Law Group, PLLC, Attorney for Defendant Mulvey, 80 Orville Drive, Suite 100, Bohemia, New York 11716
Robert F. Quinlan, J.
ORDERED that after a traverse hearing set by this court's orders dated November 30, 2017 (Mot. Seq. No.003) and December 7, 2018 (Mot. Seq. # 004) the court finds that by a preponderance of the credible evidence the plaintiff has established service of the summons, complaint and notice required by RPAPL § 1303 upon defendant Maureen G. Mulvey; and it is further
ORDERED that defendant Maureen G. Mulvey's application (Mot. Seq. # 003) for an order pursuant to CPLR § 5015 (a) (4) vacating the terms of the prior orders of this court setting her default in answering, appointing a referee to compute and issuing a judgment of foreclosure and sale, and upon vacatur dismissing the action against defendant for lack of jurisdiction is denied, and it is further
ORDERED that the stay of the sale of the foreclosed property directed by the order to show cause signed on September 11, 2017 (Mot. Seq. # 003) is lifted and removed and plaintiff is directed to schedule a sale of the foreclosed property in compliance RPAPL § 1351 and all other laws and rules appurtenant thereto; and it is further
ORDERED that if the referee is unable conduct the sale within 90 days of the date of this order, in accordance with CPLR 2004, the time fixed by RPAPL § 1351(1) is extended for the referee to conduct the sale as soon as reasonably practicable.
This is an action to foreclose a mortgage on residential real property located at 117 Woodcut Drive, Mastic Beach, Suffolk County, New York ("the property") given by defendant-mortgagors Darien L. Johnson and Maureen G. Mulvey to a predecessor in interest to plaintiff The Bank of America New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of CWABS Inc., Asset-Backed Certificates, Series 2006-25 ("plaintiff" ’). After plaintiff commenced the action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk, plaintiff served both defendant-mortgagors, and upon their failure to appear and answer, this court by order dated July 13, 2015 (McKenzie, J.) fixed and set their defaults, granted an order of reference appointing a referee to compute pursuant to RPAPL § 1321 and amended the caption to remove the "John Doe" and "Mary Roe" defendants. Subsequently, plaintiff moved for a judgment of foreclosure and sale, which was also not opposed by defendant-mortgagors, and, as by order of the District Administrative Judge the action had been reassigned to this dedicated foreclosure part as Justice McKenzie was no longer available to adjudicate foreclosure actions, this court granted the application by order dated September 20, 2016 (Quinlan, J.).
On September 11, 2017, prior to a scheduled foreclosure sale, defendant Maureen G. Mulvey ("defendant") submitted an order to show (Mot. Seq. # 003) seeking to vacate the orders granted upon her defaults solely pursuant to CPLR 5015 (a) (4) claiming that she was never served with process in the action, and asking that the court dismiss the action against her upon vacating her default. The court signed the application, which also included a stay of the scheduled foreclosure sale, provided for service upon plaintiff's counsel, and set the motion for submission on September 28, 2017. On that date plaintiff's counsel neither appeared, requested an adjournment of the submission or submitted opposition. Although plaintiff defaulted in the motion, by its decision dated November 30, 2017, the court granted defendant's application to the extent of setting a traverse hearing (Mot. Seq. # 003), as although defendant's unopposed submissions raised issues of service, she had also submitted a copy of the sworn affidavit of plaintiff's process server which was sufficient on its face to raise an issue of fact. The court set the traverse hearing for January 9, 2018.
Subsequently plaintiff moved to vacate its default in opposing defendant's motion, which the court granted by order dated December 7, 2018 (Mot. Seq. # 004) as it found that plaintiff had provided a reasonable excuse for the default and a meritorious defense, and further that there was no prejudice to defendant as the court had already set her application for a traverse hearing. A new date for the traverse hearing was scheduled for January 7. 2019, which was adjourned upon consent two times until March 11, 2019.
TRAVERSE HEARING
On that date plaintiff presented Doreen Napolitano, who, with her husband, was serving process for Provest, LLC ("Provest") on June 10, 2013, including service of the summons, complaint and notice required by RPAPL § 1303 on behalf of plaintiff on defendant at the property. She testified, consistent with her sworn affidavit of service submitted with defendant's motion, that she served defendant at approximately 7:56 PM on June 10, 2013. When defendant appeared at the door defendant acknowledged that she was Maureen G. Mulvey, that she resided there and, when asked, told the witness that she was 47 years old. The witness then served her personally with the papers, as well as serving her as a person of suitable age and discretion for co-defendant-mortgagor. The witness produced her "field sheets" which she used to make notations concerning the service of both defendant and co-defendant-mortgagor, which would later be sent to Provest, where an employee of Provest prepared the affidavit of service for her signature. The "field sheets, " as well as her affidavit of service, were admitted into evidence. Both the "field sheet" relating to serving defendant and the affidavit of service described defendant as female, white, brown hair, 47 years old, 5'7? in height and 165 lbs. Ms. Napolitano testified that if the defendant had not stated her age to her as 47, she would not have put an exact age in the "field sheet" but would have instead put a "range of age." She also noted on her "field sheet" that defendant was wearing glasses, and that a vehicle bearing NYS license plate "ECL-4003" was present at the home. Neither party produced any proof of registration or ownership of the vehicle. Ms. Napolitano's "mailing log" was also admitted in evidence, although it related more to service upon co-defendant-mortgagor, as no mailing was necessary as to service upon defendant.
On cross-examination, Ms. Napolitano volunteered that she had the complete list of "field sheets" for service performed by her and her husband for Provest on June 10, 2013 available on her cell phone, and with the help of the clerk, a copy was made for both counsel and admitted into evidence as defendant's exhibit. On cross-examination the witness stated that other than defendant's age, the other physical descriptions given in the "field sheet" and affidavit of service were based upon her observations and estimates. She also described the property as having a front porch. On re-direct examination, the witness stated that if she had served a person who had refused to identify herself to her she would have listed that person as a "Jane Doe" on both her "field sheet" and the affidavit of service and then also mailed a copy of the papers to defendant at the property as she had with co-defendant-mortgagor. Upon the completion of Ms. Napolitano's testimony plaintiff rested.
Defendant took the stand on her own behalf. She denied service, stating that she was not at home at the time and was in fact in Riverhead where she was receiving a "spa treatment" at the home of a friend which was scheduled for 5:30 PM, that by the time the services were completed and she had gathered her children who were playing with her friend's children, she could not have been home by the time service was allegedly made upon her. As to the description given by Ms. Napolitano of her in her "field sheets and the affidavit she said that at the time she was only 135 lbs, 5'8? in height, 42 years of age and described her hair as more blonde than brown. Although she now again goes by her maiden name as she is separated from her husband co-defendant-mortgagor, at the time of the alleged service she claimed that she used her married name, Johnson. Additionally, she admitted to wearing glasses but only when she had an eye infection. She suggested that the person served by Ms. Napolitano could have been a woman that her husband was "seeing" at that time, although this was based upon pure speculation.
On cross-examination Ms. Mulvey admitted that she was born in 1966 and therefore was 47 at the time service was allegedly made upon her and not 42 as she stated upon direct examination by her attorney. She stated that she learned about this lawsuit in 2014 after her brother had passed away. Neither on direct or cross-examination did defendant contradict Ms. Napolitano's description of there being a porch on the property.
Defendant also called Charlene Bugdin, her friend who allegedly performed the "spa treatments" on the day of the alleged service, to testify on her behalf. Ms. Bugdin, who was going by a prior married name on June 10, 2013, corroborated defendant's claim that defendant was at Ms. Bugdin's home at the time of the alleged service and could not have left there and arrived at the property before the time of service. Ms. Bugdin's testimony showed that she and defendant had been friends for 16 to 18 years, as their former husbands had been friends, and that they remained friends. To support her claim that Ms. Mulvey was receiving treatments at her home on the late afternoon of June 10, 2013, Ms. Bugdin produced her appointment book which showed her hand made entries for the month of June 2013, which was entered into evidence. On examination she acknowledged that appointment times would be listed for her clients, that it was her practice to place the dollar amount for services next to a client's name in a circle with a check mark through the client's name when the services occurred. Although the appointment for defendant was noted at " 5:30" on June 10, 2013, along with a description of the services to be performed, she admitted that there was no dollar amount in a circle next to the appointment, nor was there a check mark through the appointment. Instead there appeared a "question mark" after the appointment, which Ms. Bugdin claimed was there because she did not know exactly what services defendant would have time for, so she did not know what the charge would be. As to why she did not place a circled amount next to this entry and a check mark through it if the services had been performed, Ms. Bugdin stated that she must have forgotten and that she was not the best record keeper. The court notes that all other entries in the appointment book bear the circled dollar amount and check mark, except one over which the witness had written "EXL" which she stated meant it had been cancelled. Upon the completion of Ms. Bugdin's testimony, defendant rested. As plaintiff called no witnesses in rebuttal, after summations by counsel, the court indicated that it would reserve decision and issue a written decision.
DECISION
Ordinarily a process server's affidavit of service constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v. Pietranico , 102 AD3d 724 [2d Dept 2013] ; Mary A. G. v. Ira T. B. , 157 AD3d 951 [2d Dept 2018] ), but where that showing has been rebutted, as was determined by the court's decision of November 30, 2017, plaintiff must establish at a traverse hearing personal jurisdiction by a preponderance of the evidence (see Aurora Loan Servs., LLC v. Gaines , 104 AD3d 885 [2d Dept 2013] ; Wachovia Bank, N.A. v. Greenberg , 138 AD3d 984 [2d Dept 2016] ). The burden of proof remains at all times with the plaintiff and does not shift during the hearing (see Lexington Ins. Co. v. Schuyler Bumpers , 125 AD2d 554 [2d Dept 1986] ; Mary A. G. v. Ira T. B., supra ).
Having heard the testimony, observed the witnesses and reviewed the evidence submitted, the court finds that plaintiff has sustained its burden of proof by a preponderance of the credible evidence that service was properly made upon defendant on June 10, 2013 by plaintiff's process server at the property. The court finds Ms. Napolitano's testimony candid, credible and supported by the information contained in her "field sheets" made at that time, as well as her affidavit of service. Minor discrepancies in the physical description of defendant are insufficient to form the basis to grant a motion to vacate a judgment of foreclosure and sale granted upon default or to dismiss an action pursuant to CPLR 3211 (a) (8) (see JPMorgan Chase Bank v. Daar , 161 AD3d 835 [2d Dept 2018] ). Defendant's own testimony did not definitively state that her hair color was blonde at the time, only that she "wouldn't call it brown, more blonde, but...," and her claims as to discrepancies in height by an inch and weight were not significant. Further, defendant admits to wearing glasses at times. As to defendant's age, Ms. Napolitano stated that she does not place a specific age in her "field sheets" or affidavit unless given that age by the person served and although on direct examination by her counsel defendant claimed she was 42 years old a the time of service, on cross-examination when confronted by plaintiff's counsel with proof of her birth date, she admitted she was actually 47 years old. Although defendant's stated reason for this was being poor at math, the court finds that under the circumstances of this hearing such an answer lacks candor.
As to defendant's claim that she was not at the property at the time of service, the court finds that the proof offered by Ms. Bugdin's testimony and her appointment book that defendant was at her home receiving "spa treatments" to raise questions of credibility. When the court evaluates her testimony and compares it with the entries in her appointment book admitted into evidence, the court finds that the juxtaposition of the entry regarding defendant's appointment with other client entries affected the weight that the court should give to her testimony.
Therefore, considering all the testimony and exhibits, the court finds the credible testimony of Ms. Napolitano to establish proper service upon defendant. Defendant's motion brought by order to show cause (Mot. Seq. # 003) for an order pursuant to CPLR § 5015 (a) (4) vacating the terms of the prior orders of this court setting her default in answering, appointing a referee to compute and issuing a judgment of foreclosure and sale, and upon vacatur dismissing the action against defendant for lack of jurisdiction is denied.
The stay of the sale of the foreclosed property directed by the order to show cause signed on September 11, 2017 (Mot. Seq. # 003) is lifted and removed and plaintiff is directed to schedule a sale of the foreclosed property in compliance RPAPL § 1351 and all other laws and rules appurtenant thereto.
This constitutes the Order and decision of the Court.