Opinion
2017–04683 Index No. 8735/13
05-29-2019
WELLS FARGO BANK, NA, Respondent, v. Gene BURSHSTEIN, Appellant, et al., Defendants.
Cooper & Paroff, P.C., Kew Gardens, N.Y. (Henry M. Graham of counsel), for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Christian Fletcher of counsel), for respondent.
Cooper & Paroff, P.C., Kew Gardens, N.Y. (Henry M. Graham of counsel), for appellant.
Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Christian Fletcher of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Gene Burshstein appeals from an order of the Supreme Court, Kings County (Derefim Neckles, Ct. Atty. Ref.), dated March 8, 2017. The order, after a hearing to determine the validity of service of process upon that defendant, in effect, denied that branch of his motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
On May 9, 2013, the plaintiff commenced this action against the defendant Gene Burshstein (hereinafter the defendant), among others, to foreclose a mortgage on property located at 2125 Flatbush Avenue in Brooklyn. The defendant failed to answer the complaint. In an order dated November 14, 2014, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment and an order of reference. Thereafter, the court issued a judgment of foreclosure and sale dated January 29, 2016.
In June 2016, the defendant moved, inter alia, to vacate the order dated November 14, 2014, and the judgment of foreclosure and sale and, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The plaintiff opposed the motion. In an order dated October 13, 2016, the Supreme Court referred the matter to a Referee to hear and determine the issue of the validity of service of process upon the defendant. A hearing was held at which the process server and the defendant both testified. In an order dated March 8, 2017, a Court Attorney Referee, in effect, denied that branch of the defendant's motion which was to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The defendant appeals, and we affirm.
"The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process" ( Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343, 756 N.Y.S.2d 92 ; see HSBC Bank USA, N.A. v. Hamilton, 116 A.D.3d 663, 664, 983 N.Y.S.2d 585 ). "In reviewing a determination made after a hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses" ( Deutsche Bank Natl. Trust Co. v. Gordon, 129 A.D.3d 769, 769, 11 N.Y.S.3d 222 ; see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Everhome Mtge. Co. v. Berger, 151 A.D.3d 811, 812, 56 N.Y.S.3d 548 ; HSBC Bank USA, N.A. v. Hamilton, 116 A.D.3d at 663, 983 N.Y.S.2d 585 ).
Here, the plaintiff met its burden of proving by a preponderance of the evidence that the defendant was properly served with the summons and complaint pursuant to CPLR 308(2) at his actual place of business (see Everhome Mtge. Co. v. Berger, 151 A.D.3d at 812, 56 N.Y.S.3d 548 ). We find no basis to disturb the Supreme Court's finding that the testimony of the process server was more credible than that of the defendant (see Mastroianni v. Rallye Glen Cove, LLC, 59 A.D.3d 686, 687, 874 N.Y.S.2d 210 ).
The defendant's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination, in effect, to deny that branch of the defendant's motion which was, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.
RIVERA, J.P., COHEN, MALTESE and BRATHWAITE NELSON, JJ., concur.