On November 19, 2020 a
Exhibit,Appendix
was filed
involving a dispute between
Nyctl 2019-A Trust, And The Bank Of New York Mellon As Collateral Agent And Custodian For The Nyctl 2019-A Trust,,
and
And John Doe No. 1 Through John Doe No. 100 Inclusive, The Names Of The Last 100 Defendants Being Fictitious, The True Names Of Said Defendants Being Unknown To Plaintiff, It Being Intended To Designate Fee Owners, Tenants Or Occupants Of The Liened Premises And Or Persons Or Parties Having Or Claiming An Interest In Or A Lien Upon The Liened Premises, If The Aforesaid Individual Defendants Are Living, And If Any Or All Of Said Individual Defendants Be Dead, Their Heirs At Law, Next Of Kin,
Distributees, Executors, Administrators, Trustees, Committees, Devisees, Legatees, And The Assignees, Lienors, Creditors And Successors In Interest Of Them, And Generally All Persons Having Or Claiming Under, By, Through, Or Against The Said Defendants Named As A Class, Of Any Right, Title, Or Interest In Or Lien Upon The Premises Described In The Complaint Herein,,
Mrs. Boyer,
Nathaniel Boyer,
Romeo Madessa Mitchell,
Spring Homes Llc,
Susan Boyer
S H A John Doe No.2,
for Real Property - Tax Foreclosure
in the District Court of Queens County.
Preview
INDEX NO. 722208/2020
NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 07/31/2023
Exhibit “D”
INDEX NO. 722208/2020
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022
MEMORANDUM
SUPREME COURT - STATE OF NEW YORK
CIVIL TERM - IAS PART 34 - QUEENS COUNTY
25-10 COURT SQUARE, LONG ISLAND CITY, N.Y. 11101
PRESENT HON. ROBERT J. MCDONALD
Justice
--- ee eee - - x
NYCTL 2019-A TRUST, and THE BANK OF By: McDonald, J.
NEW YORK MELLON as Collateral Agent
and Custodian for the NYCTL 2019-A Index No. 722208/2020
Trust,
Motion Date: 3/3/2022
Plaintiffs,
Motion No.: 21
- against -
Motion Seq.: 2
NATHANIEL BOYER, ROMEO MADESSA
MITCHELL, SPRING HOMES LLC,
(FIRST NAME REFUSED)
MRS. BOYER
s/h/a JOHN DOE FILED
No.1 and SUSAN BOYER s/h/a JOHN DOE 3/8/2022
No.2,
COUNTY CLERK
Defendants.
QUEENS COUNTY
--- ee eee - - - - - x - - - - - -
The following electronically filed documents read on this motion
by plaintiffs for entry of a Judgment of Foreclosure and Sale, an
award of legal fees, costs and disbursements; and on this cross-
motion by defendant NATHANIEL BOYER for an Order pursuant to CPLR
5015 (a) (4), vacating the default order of reference dated
November 15, 2021, pursuant to CPLR 3211(a) (8), dismissing this
action in its entirety, or in the alternative, denying
plaintiff’s motion to confirm the referee’s report and fora
judgment of foreclosure and sale:
Papers
Numbered
Notice of
Motion-Affirmation-Exhibits eee ee eee EF 34 = 41
Notice of
Cross-Motion-Affirmation-Affidavits-
Memo. of Law-Exhibits eee ee ee eee eens EF 46 - 56
Affirmation in Reply ee eee eee eee ee eee ee EF 57 - 58
This tax lien foreclosure action pertains to property
located at 157-16 134** Avenue, Flushing, New York.
By Order dated November 15, 2021, this Court granted
plaintiff’s motion for summary judgment and an Order of
Reference.
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INDEX NO. 722208/2020
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022
Referee Judah Maltz, Esq. took his oath and submitted a
report dated October 14, 2021. The Report states that plaintiff
was due the sum of $78,257.41 plus a per diem interest as of
November 22, 2021, and the mortgaged premises should be sold in
one parcel. Based upon the Report of the Referee, plaintiff now
moves for an order granting a final judgment of foreclosure and
sale.
Defendant opposes the motion and cross-moves to dismiss the
action on the grounds that the Court lacks personal jurisdiction.
When a defendant seeking to vacate a judgment entered on default,
as here, raises a jurisdictional objection, the court is required
to resolve the jurisdiction question in determining whether to
vacate the judgment (see Canelas v Flores, 112 AD3d 87 {2d Dept.
2013]; Roberts v Anka, 45 AD3d 752 {2nd Dept. 2007]). “It is
axiomatic that the failure to serve process in an action leaves
the court without personal jurisdiction over the defendant, and
all subsequent proceedings are thereby rendered null and void”
(Emigrant Mtge. Co., Inc. v_Westervelt, 105 AD3d 896 {2d Dept.
20131, quoting Krisilas v Mount Sinai Hosp., 63 AD3d 887[2d Dept
2009]).
A process server's affidavit stating proper service in
accordance with CPLR 308 constitutes prima facie evidence of
proper service (see Bank, Natl. Assn. v_ Arias, 85 AD3d 1014 [2d
Dept. 2011]; Wells Fargo Bank, NA v. Chaplin, 65 AD3d 588 2d
Dept. 2009]; Scarano v_ Scarano, 63 AD3d 716 {2d Dept. 2009]).
However, a defendant's sworn denial of receipt of service,
containing specific facts to rebut the statements in the process
server's affidavit, “generally rebuts the presumption of proper
service established by a process server's affidavit and
necessitates an evidentiary hearing” (Cit of New York v Miller,
72 AD3d 726 [2d Dept. 2010]; see Wells Fargo Bank, N.A. Vv
Christie, 83 AD3d 824 {2d Dept. 2011]; Associates First Capital
Corp. v Wi ins, 75 AD3d 614 {2d Dept. 2010]; Washington Mut.
Bank v Holt, 71 AD3d 670[2d Dept. 2010]).
The process server's affidavit of service indicates that
defendant Nathaniel Boyer was served pursuant to CPLR 308(2) on
December 3, 2020 at 4:30 p.m. at 157-16 134“ Avenue, 24 Floor,
Flushing, NY 11434 by delivering a copy of the summons and
complaint to Susan Boyer, family relative and a person of
suitable age and discretion. The affidavit of service also
indicates that when asked whether the premises was defendant
Nathaniel Boyer’s home within the state, Susan Boyer’s reply was
affirmative. The individual served was described as black, age
55, 160 lbs., wee black hair.
20f 4
INDEX NO. 722208/2020
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022
In support of the cross-motion defendant Nathaniel Boyer
submits an affidavit affirming that he was never served. He does
not live in Flushing or on the 2" floor. He lives in Jamaica on
the 1** floor of a private home with his wife and mother-in-law.
His mother-in-law uses a wheelchair and never answers the door.
His wife would not have been home at 4:30 p.m. on December 3,
2020 because she would have still been at work. Additionally, his
wife weighed around 200 pounds and not 160 pounds on December 3,
2020. He would have been home, but no one knocked on the door on
the date of the alleged service. There were no family members,
friends or guests over that fit the description of the woman that
the process server allegedly gave the papers to.
Nathaniel Boyer’s wife, Suzan Boyer, submits an affidavit,
affirming that the process server never gave her any court
papers. If someone attempted to serve her, she would have chased
him or her with a machete and immediately called her attorney. On
the date and time of the alleged service, she would have been at
work and would not have gotten home until 7:00 p.m.
Here, this Court finds that defendant’s contention that his
wife usually does not arrive home until 7:00 p.m. is insufficient
to rebut the process server’s affidavit. Suzan Boyer does not
submit a time sheet or an affidavit from her employer, affirming
that she worked on the date of service or that she usually did
not get home from work until 7:00 p.m. Additionally, the minor
discrepancies between the appearance of the person allegedly
served and the description of the person served in the affidavit
of service are insufficient to raise an issue of fact warranting
a hearing (see U.S. Bank Nat. Ass'n v Cherubin, 141 AD3d 514 [2d
Dept. 2016]; Wells Fargo Bank, N.A. v_Kohn N.A., 137 AD3d 897 [2d
Dept. 2016]; Green Point Sav. Bank v Clark, 253 AD2d 514 [2d
Dept. 1998]) Further, the discrepancies are not substantiated by
anything more than a claim by defendant and his wife that the
description is incorrect (see Indymac Fed. Bank, FSB v_ Hyman, 74
AD3d 751 [2d Dept. 2010]).
As to that branch of the cross-motion seeking to vacate the
default pursuant to CPLR 5015(a) (1), to vacate a default, a
defendant must establish a reasonable excuse for the default and
a potentially meritorious defense (see Wells Fargo, N.A. v
Cervini, 84 AD3d 789 {2011]; Midfirst Bank v Al-Rahman, 81 AD3d
797 (2011]; HSBC Bank, USA v_ Dammond, 59 AD3d 679 [2009]).
Regardless of whether defendant has asserted a reasonable
excuse, defendant failed to establish a potentially meritorious
defense. The Tax Lien Certificate is sufficient evidence to
establish a valid and enforceable tax lien.
3 0f 4
INDEX NO. 722208/2020
NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2024
Accordingly, and for the reasons stated above, it is hereby
ORDERED, that the motion by plaintiffs is granted; and it is
further
ORDERED, that the cross-motion is denied.
The Proposed Judgment of Foreclosure and Sale has been
signed simultaneously herewith.
This Court notes that nothing in this decision precludes
defendant from paying off the tax lien or entering into a payment
plan with plaintiffs prior to the foreclosure sale.
Dated: March 7, 2022
Long Island City, N.Y.
Bolerd fo Me Senate
ROBERT J. MCDONALD
J.S.C.
FILED
3/8/2022
COUNTY CLERK
QUEENS COUNTY
4 of 4
Preview
INDEX NO. 722208/2020 NYSCEF DOC. NO. 80 RECEIVED NYSCEF: 07/31/2023 Exhibit “D” INDEX NO. 722208/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022 MEMORANDUM SUPREME COURT - STATE OF NEW YORK CIVIL TERM - IAS PART 34 - QUEENS COUNTY 25-10 COURT SQUARE, LONG ISLAND CITY, N.Y. 11101 PRESENT HON. ROBERT J. MCDONALD Justice --- ee eee - - x NYCTL 2019-A TRUST, and THE BANK OF By: McDonald, J. NEW YORK MELLON as Collateral Agent and Custodian for the NYCTL 2019-A Index No. 722208/2020 Trust, Motion Date: 3/3/2022 Plaintiffs, Motion No.: 21 - against - Motion Seq.: 2 NATHANIEL BOYER, ROMEO MADESSA MITCHELL, SPRING HOMES LLC, (FIRST NAME REFUSED) MRS. BOYER s/h/a JOHN DOE FILED No.1 and SUSAN BOYER s/h/a JOHN DOE 3/8/2022 No.2, COUNTY CLERK Defendants. QUEENS COUNTY --- ee eee - - - - - x - - - - - - The following electronically filed documents read on this motion by plaintiffs for entry of a Judgment of Foreclosure and Sale, an award of legal fees, costs and disbursements; and on this cross- motion by defendant NATHANIEL BOYER for an Order pursuant to CPLR 5015 (a) (4), vacating the default order of reference dated November 15, 2021, pursuant to CPLR 3211(a) (8), dismissing this action in its entirety, or in the alternative, denying plaintiff’s motion to confirm the referee’s report and fora judgment of foreclosure and sale: Papers Numbered Notice of Motion-Affirmation-Exhibits eee ee eee EF 34 = 41 Notice of Cross-Motion-Affirmation-Affidavits- Memo. of Law-Exhibits eee ee ee eee eens EF 46 - 56 Affirmation in Reply ee eee eee eee ee eee ee EF 57 - 58 This tax lien foreclosure action pertains to property located at 157-16 134** Avenue, Flushing, New York. By Order dated November 15, 2021, this Court granted plaintiff’s motion for summary judgment and an Order of Reference. lof 4 INDEX NO. 722208/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022 Referee Judah Maltz, Esq. took his oath and submitted a report dated October 14, 2021. The Report states that plaintiff was due the sum of $78,257.41 plus a per diem interest as of November 22, 2021, and the mortgaged premises should be sold in one parcel. Based upon the Report of the Referee, plaintiff now moves for an order granting a final judgment of foreclosure and sale. Defendant opposes the motion and cross-moves to dismiss the action on the grounds that the Court lacks personal jurisdiction. When a defendant seeking to vacate a judgment entered on default, as here, raises a jurisdictional objection, the court is required to resolve the jurisdiction question in determining whether to vacate the judgment (see Canelas v Flores, 112 AD3d 87 {2d Dept. 2013]; Roberts v Anka, 45 AD3d 752 {2nd Dept. 2007]). “It is axiomatic that the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void” (Emigrant Mtge. Co., Inc. v_Westervelt, 105 AD3d 896 {2d Dept. 20131, quoting Krisilas v Mount Sinai Hosp., 63 AD3d 887[2d Dept 2009]). A process server's affidavit stating proper service in accordance with CPLR 308 constitutes prima facie evidence of proper service (see Bank, Natl. Assn. v_ Arias, 85 AD3d 1014 [2d Dept. 2011]; Wells Fargo Bank, NA v. Chaplin, 65 AD3d 588 2d Dept. 2009]; Scarano v_ Scarano, 63 AD3d 716 {2d Dept. 2009]). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, “generally rebuts the presumption of proper service established by a process server's affidavit and necessitates an evidentiary hearing” (Cit of New York v Miller, 72 AD3d 726 [2d Dept. 2010]; see Wells Fargo Bank, N.A. Vv Christie, 83 AD3d 824 {2d Dept. 2011]; Associates First Capital Corp. v Wi ins, 75 AD3d 614 {2d Dept. 2010]; Washington Mut. Bank v Holt, 71 AD3d 670[2d Dept. 2010]). The process server's affidavit of service indicates that defendant Nathaniel Boyer was served pursuant to CPLR 308(2) on December 3, 2020 at 4:30 p.m. at 157-16 134“ Avenue, 24 Floor, Flushing, NY 11434 by delivering a copy of the summons and complaint to Susan Boyer, family relative and a person of suitable age and discretion. The affidavit of service also indicates that when asked whether the premises was defendant Nathaniel Boyer’s home within the state, Susan Boyer’s reply was affirmative. The individual served was described as black, age 55, 160 lbs., wee black hair. 20f 4 INDEX NO. 722208/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2022 In support of the cross-motion defendant Nathaniel Boyer submits an affidavit affirming that he was never served. He does not live in Flushing or on the 2" floor. He lives in Jamaica on the 1** floor of a private home with his wife and mother-in-law. His mother-in-law uses a wheelchair and never answers the door. His wife would not have been home at 4:30 p.m. on December 3, 2020 because she would have still been at work. Additionally, his wife weighed around 200 pounds and not 160 pounds on December 3, 2020. He would have been home, but no one knocked on the door on the date of the alleged service. There were no family members, friends or guests over that fit the description of the woman that the process server allegedly gave the papers to. Nathaniel Boyer’s wife, Suzan Boyer, submits an affidavit, affirming that the process server never gave her any court papers. If someone attempted to serve her, she would have chased him or her with a machete and immediately called her attorney. On the date and time of the alleged service, she would have been at work and would not have gotten home until 7:00 p.m. Here, this Court finds that defendant’s contention that his wife usually does not arrive home until 7:00 p.m. is insufficient to rebut the process server’s affidavit. Suzan Boyer does not submit a time sheet or an affidavit from her employer, affirming that she worked on the date of service or that she usually did not get home from work until 7:00 p.m. Additionally, the minor discrepancies between the appearance of the person allegedly served and the description of the person served in the affidavit of service are insufficient to raise an issue of fact warranting a hearing (see U.S. Bank Nat. Ass'n v Cherubin, 141 AD3d 514 [2d Dept. 2016]; Wells Fargo Bank, N.A. v_Kohn N.A., 137 AD3d 897 [2d Dept. 2016]; Green Point Sav. Bank v Clark, 253 AD2d 514 [2d Dept. 1998]) Further, the discrepancies are not substantiated by anything more than a claim by defendant and his wife that the description is incorrect (see Indymac Fed. Bank, FSB v_ Hyman, 74 AD3d 751 [2d Dept. 2010]). As to that branch of the cross-motion seeking to vacate the default pursuant to CPLR 5015(a) (1), to vacate a default, a defendant must establish a reasonable excuse for the default and a potentially meritorious defense (see Wells Fargo, N.A. v Cervini, 84 AD3d 789 {2011]; Midfirst Bank v Al-Rahman, 81 AD3d 797 (2011]; HSBC Bank, USA v_ Dammond, 59 AD3d 679 [2009]). Regardless of whether defendant has asserted a reasonable excuse, defendant failed to establish a potentially meritorious defense. The Tax Lien Certificate is sufficient evidence to establish a valid and enforceable tax lien. 3 0f 4 INDEX NO. 722208/2020 NYSCEF DOC. NO. 60 RECEIVED NYSCEF: 03/88/2024 Accordingly, and for the reasons stated above, it is hereby ORDERED, that the motion by plaintiffs is granted; and it is further ORDERED, that the cross-motion is denied. The Proposed Judgment of Foreclosure and Sale has been signed simultaneously herewith. This Court notes that nothing in this decision precludes defendant from paying off the tax lien or entering into a payment plan with plaintiffs prior to the foreclosure sale. Dated: March 7, 2022 Long Island City, N.Y. Bolerd fo Me Senate ROBERT J. MCDONALD J.S.C. FILED 3/8/2022 COUNTY CLERK QUEENS COUNTY 4 of 4