Opinion
2015-09-30
CITIMORTGAGE, INC., respondent, v. Simcha DIAMANT, appellant, et al., defendant.
Simcha Diamant, Jerusalem, Israel, appellant pro se. Duane Morris LLP, New York, N.Y. (Stephanie A. Sgambati of counsel), for respondent.
Simcha Diamant, Jerusalem, Israel, appellant pro se. Duane Morris LLP, New York, N.Y. (Stephanie A. Sgambati of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Simcha Diamant appeals from an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), entered February 28, 2013, which, after a hearing to determine the validity of service of process, in effect, denied that branch of his motion which was pursuant to CPLR 5015(a)(4) to vacate a default judgment of the same court dated July 7, 2009, insofar as entered against him, and a judgment of foreclosure and sale of the same court dated October 20, 2009.
ORDERED that the order is affirmed, with costs.
Contrary to the appellant's contention, the Supreme Court properly admitted into evidence at the hearing to determine the validity of service of process the work notes of the process server under both the business records exception to the hearsay rule ( see CPLR 4518[a]; Matter of Leon RR, 48 N.Y.2d 117, 122–123, 421 N.Y.S.2d 863, 397 N.E.2d 374; Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 179–180, 844 N.Y.S.2d 374; Kane v. Triborough Bridge & Tunnel Auth., 8 A.D.3d 239, 241, 778 N.Y.S.2d 52) and as a past recollection recorded ( see People v. Taylor, 80 N.Y.2d 1, 8, 586 N.Y.S.2d 545, 598 N.E.2d 693; People v. Fields, 151 A.D.2d 598, 599, 542 N.Y.S.2d 356; Ianielli v. Consolidated Edison Co., 75 A.D.2d 223, 228–229, 428 N.Y.S.2d 473). The Supreme Court properly determined that the plaintiff proved by a preponderance of the evidence that service of process had been accomplished and that jurisdiction over the appellant was obtained ( see Wells Fargo Bank, N.A. v. Moza, 129 A.D.3d 946, 13 N.Y.S.3d 127).
To the extent that the appellant raises arguments on appeal regarding those branches of his motion which were to vacate the judgment of foreclosure and sale and the underlying default judgment on grounds other than improper service of the summons and complaint, those branches of the appellant's motion were not addressed by the Supreme Court and, thus, remain pending and undecided ( see Liberty County Mut. v. Avenue I Med. P.C., 129 A.D.3d 783, 11 N.Y.S.3d 623; Federal Natl. Mtge. Assn. v. Anderson, 119 A.D.3d 892, 894, 991 N.Y.S.2d 85; Wells Fargo Bank, N.A. v. Christie, 83 A.D.3d 824, 825, 921 N.Y.S.2d 127; Pedicini v. Catalano, 11 A.D.3d 665, 783 N.Y.S.2d 659; Katz v. Katz, 68 A.D.2d 536, 542–543, 418 N.Y.S.2d 99). DILLON, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.