Opinion
No. 4147–10.
2013-01-28
CONCEPT 9 LLC, Plaintiff, v. ALPINE HOLDING, LLC, et al., Defendants.
Cecily A. Harris, Esq., Goldberg & Rimberg, PLLC, New York, for Plaintiff. Marvin Newberg, Esq., Monticello, for Defendants Shmuel Salamon and Suri Salamon.
Cecily A. Harris, Esq., Goldberg & Rimberg, PLLC, New York, for Plaintiff. Marvin Newberg, Esq., Monticello, for Defendants Shmuel Salamon and Suri Salamon.
FRANK J. LaBUDA, J.
Defendants Shmuel and Suri Salamon (hereinafter “Defendants”) have submitted, by order to show cause, a motion to reargue this Court's Finding of Facts and Conclusions of Law dated November 7, 2012, in which, after a Traverse hearing held on August 13, 2012, the Court adopted the Finding of Facts and Conclusions of Law submitted by Plaintiff. Said findings and conclusions determined Plaintiff properly served Defendants with the summons and complaint in this above-captioned foreclosure action.
BACKGROUND
This action is to foreclose Defendants' condominium at Alpine Acres in South Fallsburg, New York. After filing the summons and complaint, counsel for Plaintiff hired a licensed process server to serve the summons and complaint on Defendants at their last known address at 248 Hews Street, Apartment 3C, in Brooklyn. Based on the testimony and evidence at the Traverse hearing, the process server, who had over 12 years of experience, physically went to Defendants' last known address on three separate occasions in January, 2011, to no avail. He attempted personal service on January 6 at 6:30 pm, January 7 at 3:15 pm, and January 10 at 11:30 am. He then executed service by “nail and mail” on January 12, 2011. The certified mail he sent to Defendants' Hews Street address was not returned. Defendants did not answer or otherwise respond to the summons and complaint.
Plaintiff timely moved for default judgment and offered proof of service, proof of the claim, and proof of default pursuant to CPLR § 3215(f). By decision and order dated January 19, 2012, this Court granted default judgment against some of the named defendants, but reserved judgment on Defendants Shmuel and Suri Salamon. The January 19, 2012, decision included an order for a Traverse hearing regarding service on Defendants.
The Traverse hearing was held on August 13, 2012, at which the process server and Defendant Shmuel Salamon testified. Defendants claimed they first became aware of the foreclosure action when they visited their Alpine Acres condominium in the summer of 2011. They argued they were not properly personally served, because they did not live at Hews Street in January of 2011; they claimed they were living at 254 Hooper Street in Brooklyn at that time.
At the conclusion of the hearing, the Court directed the parties to submit proposed findings of fact and conclusions of law. The Court adopted Plaintiff's findings and conclusions, having found the testimony of the process server very credible and that Plaintiff complied with the service requirements under the CPLR. After being served with notice of entry, Defendants submitted the within motion for reargument.
DISCUSSION
A motion to reargue must be based on “matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion....” CPLR § 2221(d)(2); Loris v. S & W Realty Corp., 16 AD3d 729 [3rd Dept.2005]; Grassel v. Albany Medical Center, 223 A.D.2d 803 [3rd Dept.1996], lv denied88 N.Y.2d 842 [1996] ). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. Foley v. Roche, 68 A.D.2d 558 [1st Dept.1979], appeal dismissed56 N.Y.2d 507 [1982]. Nor is a motion for reargument an appropriate vehicle for raising new questions. Simpson v. Loehmann, 21 N.Y.2d 773 [1967].
A review of the record and Defendants' within submissions do not offer any facts or legal arguments that would change this Court's prior determination. Contrary to Defendants' arguments, this Court did not overlook or misapprehend certain matters of fact or law in determining the prior proceeding. Mazinov v. Rella, 79 AD3d 979 [2nd Dept.2010]. As Plaintiff correctly points out, the prevailing case law in the Third Department, in which Sullivan County sits,
clearly holds the service executed by the process server in this case was proper and effective, and therefore this court has jurisdiction over the matter. State of N.Y. Higher Educ. Servs. Corp. v. Sparozic, 35 AD3d 1069, 1070 [3rd Dept.2006]. The process server, herein, attempted personal service at Defendants' last known address on three separate occasions. After three failed attempts, he affixed a copy of the summons and complaint to the apartment door and mailed another copy of the summons and complaint by certified mail. Three separate attempts at personal service, on three different days during different times of the day to account for working hours, constitutes due diligence prior to resorting to service by “nail and mail.” Id. The certified mail to the Hews Street address was not returned. The attempts at personal service in this case constituted due diligence and the affixing of the summons and complaint combined with certified mailing constituted effective service. Id., at 1070; State of N.Y. Higher Educ. Servs. Corp. v. Upshur, 252 A.D.2d 333 [3rd Dept.1999] ). The Court of Appeals has held there is no steadfast rule regarding due diligence and has acknowledged the Second Department's standard, which it specifically has stated is not the standard or rule. Barnes v. City of New York, 51 N.Y.2d 906 [1980];see also, Sartor v. Utica Taxi Center, Inc., 260 FSupp2d 670 [SDNY 2003], in which the court noted the different criteria for due diligence in New York state.
While the Court will not belabor the point, it finds defense counsel's convenient use of case citations from the Second Department, which has a different standard of due diligence from the other three departments, disingenuous.
The process server's sworn affidavit and testimony at the Traverse hearing constituted prima facie proof of good service. See, U.S. Bank National Association v. Vanvliet, 24 AD3d 906 [3rd Dept.2005]; Bankers Trust Co. Of Cal. v. Tsoukas, 303 A.D.2d 343 [3rd Dept.2003]. “A defendant may rebut that affidavit with a detailed and specific contradiction of the allegations in the process server's affidavit' sufficient to create a question of fact warranting a hearing.” U.S. Bank National Association v. Vanvliet, 24 AD3d 906, 908,citations omitted. Therefore, the burden of proof, after Plaintiff met its prima facie burden, shifted to the Defendants to prove otherwise. This Court ordered a traverse hearing, but Defendants offered no such proof at that hearing and offers none now. Defendant Shmuel Salamon was evasive during cross-examination and appeared to pretend to be confused or have memory lapses when asked specific questions regarding his residence in January, 2011, how his mail was forwarded, and which post office he used. His testimony was suspect and significantly less credible than that of the process server. Most important, while Defendants offered a 2010 electric bill addressed to the Hooper Street location, they offered no evidence, such as a driver's license or other photo identification of their domicile or any residence for the period of January, 2011, or any reasonable time period before or thereafter. The traverse hearing was scheduled well after the decision on the default judgment; the Defendants had ample time to obtain copies of bills or other evidence regarding their residence for January 2011.
Plaintiff's findings and conclusions, as well as its within submissions, indicate the procedures for due diligence and effecting proper service were followed and met. There was, and remains, nothing to indicate otherwise. Defendants' reiteration of his previous arguments regarding this issue are not grounds for reargument pursuant to CPLR 2221. Foley v. Roche, supra. This Court did not overlook or misapprehend any facts or law that would change its decision regarding whether or not there was effective service in this matter. Defendant has presented nothing new in his motion to reargue, and therefore has not met the threshold for reargument. Loris v. S & W Realty Corp., supra.
Because this Court find no basis for reargument and is denying Defendants' motion, the other issues raised by Plaintiff and Defendants need not be addressed at this time.
Based upon the above, it is therefore
ORDERED, that Defendants' motion for reargument pursuant to CPLR § 2221 is denied in its entirety.
This shall constitute the Decision and Order of this Court.