U.S. Bank v. Giraldo

8 Citing cases

  1. Wells Fargo Bank v. Singh

    204 A.D.3d 732 (N.Y. App. Div. 2022)   Cited 9 times

    In an order entered November 16, 2018, the court, inter alia, denied those branches of the defendant's motion, and the defendant appeals. "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" ( U.S. Bank N.A. v. Giraldo, 192 A.D.3d 720, 721, 139 N.Y.S.3d 561 [internal quotation marks omitted]). "The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff" ( id. at 721, 139 N.Y.S.3d 561 [internal quotation marks omitted]).

  2. United States Bank Nat'l Ass'n v. Giraldo

    230 A.D.3d 1369 (N.Y. App. Div. 2024)

    The court denied the defendant’s motion. In a decision and order dated March 3, 2021, this Court reversed and remitted the matter for a hearing to determine whether personal jurisdiction over the defendant was obtained, and for a new determination of his motion thereafter (see U.S. Bank N.A. v. Giraldo, 192 A.D.3d 720, 139 N.Y.S.3d 561). Before the hearing occurred, the plaintiff moved for leave to discontinue the action insofar as asserted against the defendant and to vacate so much of the judgment of foreclosure and sale as was against him.

  3. U.S. Bank v. Giraldo

    2024 N.Y. Slip Op. 4587 (N.Y. App. Div. 2024)

    In a decision and order dated March 3, 2021, this Court reversed and remitted the matter for a hearing to determine whether personal jurisdiction over the defendant was obtained, and for a new determination of his motion thereafter (see U.S. Bank N.A. v Giraldo, 192 A.D.3d 720).

  4. 115 Essex St., LLC v. Tenth Ward, LLC

    2024 N.Y. Slip Op. 2290 (N.Y. App. Div. 2024)

    "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (Emigrant Mtge. Co., Inc. v Westervelt, 105 A.D.3d 896, 897 [internal quotation marks omitted]; see U.S. Bank N.A. v Giraldo, 192 A.D.3d 720, 721). "Pursuant to CPLR 5015(a)(4), '[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person... upon the ground of... lack of jurisdiction to render the judgment or order.'

  5. Wilmington Sav. Fund Soc'y, FSB v. Zabrowsky

    212 A.D.3d 866 (N.Y. App. Div. 2023)   Cited 10 times

    Generally, a defendant seeking to vacate a default in answering and to compel the plaintiff to accept an untimely answer pursuant to CPLR 3012(d) must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense (see id.; Windward Bora, LLC v. Lodico, 206 A.D.3d 1038, 1039, 168 N.Y.S.3d 887 ; Gambino v. Deutsche Bank Natl. Trust Co., 181 A.D.3d 565, 566, 117 N.Y.S.3d 594 ). However, where, as here, a defendant seeking to vacate a default raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to first resolve the jurisdictional question before considering whether it is appropriate to grant discretionary relief (seeRattner v. Fessler, 202 A.D.3d 1011, 1015, 163 N.Y.S.3d 575 ; U.S. Bank N.A. v. Giraldo, 192 A.D.3d 720, 721, 139 N.Y.S.3d 561 ). Here, the Supreme Court erred in denying the defendants’ cross motion, in effect, pursuant to CPLR 5015(a)(4) to vacate their default in answering the complaint, and pursuant to CPLR 3012(d) for leave to serve and file a late answer on the ground that the defendants had not offered a reasonable excuse for their delay in moving to serve a late answer, without first resolving the jurisdictional issue that was raised.

  6. Deutsche Bank Nat'l Tr. Co. v. Molyaev

    2022 N.Y. Slip Op. 34804 (N.Y. Sup. Ct. 2024)

    Thus, the Court finds that there are questions of fact regarding proper service of process that cannot be resolved on the parties' papers (see e.g., U.S. Bank N.A. v Giraldo, 192 A.D.3d 720, 721-722 [2d Dept 2021]; Caliber Home Loans, Inc. v Silber, 173 A.D.3d963, 965 [2d Dept 2019]), and "which should be determined only after a hearing" (Gray v Giannikios, 90 A.D.3d 836, 837 [2d Dept 2011).

  7. Ennab v. Sawwan

    2023 N.Y. Slip Op. 33251 (N.Y. Sup. Ct. 2023)

    Since the defendants are seeking dismissal on multiple grounds, the court must first resolve the issue of personal jurisdiction over the moving defendants before addressing the remaining arguments (see Wilmington Savings Fund Society, FSB v Zabrowsky, 212 A.D.3d 866, 868 [2d Dept 2023]; Rattner v Fessler, 202 A.D.3d 1011, 1015 [2d Dept 2022]; U.S. Bank N.A. v Giraldo, 192 A.D.3d 720, 721 [2d Dept 2021]). Defendants contend that the instant action must be dismissed for lack of service of process upon the Farhoud Trust and nominal defendants Amjad, Dina, and Super Ace Corp.

  8. Wells Fargo Bank v. Singh

    2022 N.Y. Slip Op. 2306 (N.Y. Sup. Ct. 2022)

    In an order entered November 16, 2018, the court, inter alia, denied those branches of the defendant's motion, and the defendant appeals. "When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (U.S. Bank N.A. v Giraldo, 192 A.D.3d 720, 721 [internal quotation marks omitted]). "The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff" (id. at 721 [internal quotation marks omitted] ).