Preview
FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023
SUPREME COURT OF STATE OF NEW YORK
COUNTY OF NASSAU
_________________.._..____________________________..________Ç
WEST COAST SERVICING, INC.,
Plaintiff,
-against. Index No.: 605831/2022
MANJIT SINGH; CHAMKAUR DHILLON; ADVANTAGE
AFFIRMATION IN
ASSETS 11, INC.; PORTFOLIO RECOVERY ASSOCIATES, SUPPORT OF
LLC; CAPITAL ONE BANK USA, NA; MIDLAND FUNDING
ORDER TO SIIOW
LLC; VELOCITY INVESTMENTS, LLC, PETRO, INC.; CAUSE TO VACATE
UNIFUND CCR LLC; UNITED STATES OF AMERICA
SALE AND STAY
(INTERNAL REVENUE SERVICE); HMS INC. ON BEHALF
EVICTION
OF NASSAU COUNTY DEPARTMENT OF SOCIAL
SERVICES, PTRC INC,
Defendant.
________________________.._____________________________Ç
Ronald D. Weiss, an attorney duly admitted to practice in the State of New York, affirms
under the penalty of perjury as follows:
1. I am the recently retained attorney for the Defendant, MANJIT SINGH (hereinafter
"Defendant") in this action commenced by the Plaintiff, WEST COAST SERVICING, INC,
(hereinafter "Plaintiff') against the premises commonly known as 23 Valley Lane, Hicksville, NMe
11801 (hereinafter "Premises"). This Affirmation is based upon my discussions with my .clients
and a review of the documents that were provided to my office, and which have been filed herein
A copy of the Notice of Appearance is annexed hereto as Exhibit A. ot n arar c s ar
2. I am filing this Affirmation in support of the Emergency Offer to Show Gause
seeking an Order (a) vacating the foreclosure sale of the Premises because the Defendant was never
served with a Notice of Sale; b) staying the transfer of the Deed to the third-party purchaser and
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the execution and filing of any and all post-sale documents, (c) vacating the Defendant's default
and the Order of Reference, Judgment of Foreclosure and Sale and staying the eviction based upon
CPLR 5015(a)(4) as the Defendant was not properly served with the pleadings in this action where
the Plaintiff allegedly effectuated service over the Defendant by nail and mail therefore the Court
lacks jurisdiction over the Defendant, or, in the alternative, scheduling a traverse hearing; and the
Defendant has meritorious defenses to this 'action (d) dismissing the action due to the mailing of
the 90 Day Notices to the Defendant at the incorrect address for such other and further relief as
this Court deems just, proper and equitable.
3. In addition, the Summons and Complaint and the Judgment of Foreclosure and Sale
have the incorrect address for the subject Premises. The correct address is 23 Valley Lane,
Hicksville, NY 11801 and the pleadings have the address of the Premises as 23 Valley Road,
Hicksville, NY 11801.
4. I am filing this emergency order to show cause application for an Order: staying
the service or filing of any notices or pleadings to obtain possession of the subject Premises or
cause the eviction of the Defendant from his home; staying the execution and/or recording of the
Referee's Deed regarding the foreclosure sale of the Premises and the transfer of title; staying the
execution of the post-salg¶locuments, including, but not limited to Report of Sai erms of Sale,
p
Memo of Sale and Surplus Money Form, and for such other and further relief as this Court deems
just and proper. A foreclosure sale apparently took place on July 13, 2023 to a third-party.
m , 5; .. , 4dy nce aptice of the filing of this applicac/on has been.pe ided taÆounsel for the
Plaintiff¿ Hanspani & 4Light, PC., the Referee, Janine Lyelai , Esq A edps of the 24-Hour
Notification is annexed hereto as Exhibit B.
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6. Counsel attempted to obtain the name and contact information for the third-party
purchaser, but the Plaintiff s counsel failed and refused to disclose this information.
7. In particular, the information was requested on July 25, 2023, July 26, 2023, July
27, 2023 and July 28, 2023. Finally, on July 31, 2023, a phone call was placed to Plaintiff's
counsel, Hasbani & Light,.P.C. and advised us that they do not have the sale results As of yet. Once
are in receipt of the information for the purchaser it will be forwarded to us via e-
they third-party
mail. Copies of the e-mails between our office and Plaintiffs counsel are annexed hereto as
Exhibit C.
8. No prior application has been made for the relief requested herein before this Court
or any court of competent jurisdiction.
PROCEDURAL HISTORY
9. Based upon a review of NYSCEF, this action was commenced by the Plaintiff by
the filing of a Summons and Complaint in the Office of the Nassau County Clerk on April 28,
2022. A copy of the Summons and Complaint together with the Notice of Pendency is annexed
hereto as Exhibit D.
10. This case involves the foreclosure of a second mortgage encumbering the
residential Premises. According to the Complaint, the unpaid prii1cipal balance on the loan is
$24,631.96.
set forth in the A davito 1 i gh he is current on his first
1h h9 Supporting
mortgag on the subject Premises as evidenced b his recept M.ortgage Statement from Nationstar
Mortgage d/b/a Mr. Cooper. A copy of the Mortgage Statement is annexed hereto as Exhibit E.
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12. Pursuant to the Affidavit of Service filed with the Court, service was allegedly
effectuated on Defendant by nail and mail at the Premises on June 20, 2022. A copy of the
Affidavit of Service is annexed hereto as Exhibit F.
13. As set forth in the supporting Affidavits of the Defendant, he was not served with
the SuminonÈ and tomplaint in this action. If he had received thh plerdings, he would have
defended the action and attempted to cure his default.
14. The Defendant did not appear in this action or file an Answer to the Summons and
Complaint.
15. The Plaintiff moved for an Order of Reference, which was granted on December 2,
2022. A copy of the Order of Reference is annexed hereto as Exhibit G.
16. The Plaintiff moved for a Judgment of Foreclosure and Sale, which was granted on
May 11, 2023, and entered on May 12, 2023. A copy of the Judgment of Foreclosure and Sale is
annexed hereto as Exhibit H.
17. A foreclosure sale was conducted on July 13, 2023, and, upon information and
belief, the Premises was sold to a third-party purchaser.
. . NOTICE OF SALE WAS NEVER SERtb ON THE DEFENDANT, WHO WAS .. - , t È
NOT PROPERLY SERVED TVITH SUMMONS AND COMPLAINT, AND
DEPRIVED OF HIS OPPORTUNITY TO APPEAR IN THE ACTION
.. 18. Important protections include.but.are not limited to Real Property Actions and 4 r .. are
231"
Proceedings Law Section 231 ("RP PL § and the applicability of Civil Practice I½Ws and .
Rules Section 2103 ("CPLR 2103") to the notice of sale phase of the foreclosure process. After'a
judgment in a foreclosure proceeding is entered, the lender must comply with RPAPL § 231 and
CPLR § 2103. Failure to comply with either of these laws will be met with consequences and must
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result in a successful motion to vacate a sale.
19. Under RPAPL the Court will vacate a sale when the lender/creditor's non-
§ 231,
compliance with the statute prejudiced a substantial right of the borrower/debtor.
20. In Federal Home Loan Mortg. Corp. v. Dutsc Lane Associates, supra, the Court
n t that: .
"Recognizing New York's personal noticerequirement also comports with
fundamental notions of due process by insuring that a person with an
established property interest in a building receives notice of its
sale. See Mennonite Bd of Missions v. Adams, 462 U.S. 791, 103 S.Ct.
2706, 77 L.Ed.2d 180 (1983). The Court stated that: Notice by mail or
other means as certain to ensure actual notice is a minimum constitutional
pre-condition to a proceeding which will adversely affect the liberty or
property interest of any party, whether unlettered or well versed in
commercial practice, if its name and address are reasonably ascertainable.
2712."
Id. at 800, 103 S.Ct. at
21. In this case, the Plaintiff never served the Defendant with a Notice of Sale. The
Defendant was not properly served with the Summons and Complaint in this action and,
consequently was deprived of his opportunity to appear in this action and answer the complaint.
22. The prejudice to the Defendant is clear because the Premises was lost to a third-
party bidder due to the foreclosure of the second mortgage where the alleged unpaid principal
balance was $24,631.96. The Premi s s an estimated market value of $658,600.00. A còIy of
b t
the Zillow estimate is annexed hereto ad Exhibit I.
23. In addition, the Defendant was deprived of the opportunity to save the Premises by
paying off the subjedt tax lien set forth in the supporting Affidakit the: Defen aht,±e i .
current on his first mortgage, and s tragic that the Premises was lost due tom forecJosur action
by the second mortgagee where the unpaid principal balance is less than $25,000.00.
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IMPROPER SERVICE OF SUMMONS AND COMPLAINT ON DEFENDANT
WARRANTS VACATUR OF DEFAULT, ORDER OF REFERENCE AND
JUDGMENT OF FORECLOSURE AND SALE PURSUANT TO CPLR 5015(a) (4)
AND DISMISSAL OF ACTION OR TRAVERSE HEARING
24. In this case, the Plaintiff has alleged that the Defendant, was served with the
Summons and Complaint by nail and mail on June 20, 2022 at the Premises. See Affidavit of
service annexed hereto as Exhibit E.
25. As set forth in the supporting Affidavits, the Defendant adamantly denies receipt
of the Summons and Complaint.
(2nd
26. See Wells Fargo Bank, N A. v. Heaven, 176 A.D.3d 761, 109 N.Y S.3d 162
Dept. 2019). A party who moves to vacate a judgment entered on default on the ground of lack of
personal jurisdiction is not required to demonstrate a reasonable excuse for the default or a
potentially meritorious defense. See Dime Sav. Bank of Williamsburg v. 146 Ross Realty, 106
(2nd
A.D.3d 863, 966 N Y S.2d 443 Dept. 2013).
27. In County ofNassau v. Letosky, 34 AD3d 414, 824 NYS2d 153, the Appellate Court
noted that "Although the plaintiff notes that Letosky did not deny receipt of the summons and
complaint affixed to the door of her residence, "when the requirements for service of process have
documents."
not been met, it is irrelevant that defendant may have actually received the (Raschel
v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389; see Hillà yv. Grtt e, 213 A.D.2d
620· 967)."
450, 623 N.Y.S.2d Dewey v. Hillcrest Gen. Hosp., 201 A.D.2d 609, 607 N.Y.S.2d
28. At a minimum, I submit that a traverse hearing is requitted totenable the Court to
obsetre the witnesses arid determine whether service on the Defendant wasproper..
29 The Plaintiff failed to properly serve the Defendant, in tliat the Defendant was not
personally served, or otherwise served per the requirements of the NY CPLR §308, thereby
denying the Defendant due process in this matter.
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30. As stated by the Appellate Term in Tzifil Realty Corp. v. Temammee, 46 Misc 3d
144(A), 15 NYS3d 715 (App. Term 2015), the Court noted that: "It is well settled that a process
server's affidavit of service constitutes prima facie evidence of proper service (see Deutsche Bank
Natl. Trust Co. v. Quinones, 114 AD3d 719 [2014]; Rox Riv. 83 Partners v. Ettinger, 276 A.D.2d
782 [2000]). In order to rebut this showing and raise an issue of fact necessitating astraverse
tenant was required to submit a sworn, denial of service (see NYCTL 1998-
hearing, nonconclusory
1 Trust v. Rabinowitz, 7 AD3d 459 [2004] ; see also 25 E. 26th St. Owners Corp. v. Beaton, 50
[1991])."
AD3d 845 [2008]; Sando Realty Corp. v. Aris, 209 A.D.2d 682
31. When a Defendant rebuts a process server's affidavit of service, a traverse hearing
is required to determine the propriety of service. See Tzifil Realty Corp. v. Temammee, 46 Misc.
3d 144 (A), 15 NYS3d 715, (App. Term 2015).
32. A traverse hearing is warranted when a defendant swears to detailed and specific
facts to rebut the statements in the process server's affidavit. See Emigrant Mortgage Co., Inc. v.
(2nd
Westervelt, 105 A.D.3d 896, 897, 964 NYS 2d 543 Dept. 2013). "A sworn denial containing
a detailed and specific contradiction of the allegations in the process server's affidavit will defeat
the presumption of proper service (see Machovec v. Svoboda, 120 A.D.3d at 773, 992 N.Y.S.2d
279 ; Deytsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630s631., 949 N.Y.S.2d 393 ; Bankers
Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92). If the presumption is
rebutted, a hearing to determine the propriety of service of process is necessary. At the hearing,
the (Burden sis on the plaintiff to prove 'jurisdittion byYaDrependerance of the evidence (see ed
MachOvet v. Svoboda, 120 A.D.3d at 773, 992 N.Y.S.2ds79; Matter of Romero v. Ramirez, 100
A.D.3d 909, 910, 955 N.Y.S.2d 353 ; Tikvah Enters., LLC v. Neuman, 80 A.D.3d 748, 749, 915
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508)." (2nd
N.Y.S.2d Deutsche Bank National Trust Co. v. O'King, 148 AD3d 776, 51 NYS3d 523
Dept. 2017).
(2nd
33. In US Bank v. Giraldo, 192 AD3d 720, 139 NYS 3d 561 Dept. 2021), the
Appellate Court reversed the lower court and remitted the matter for a traverse hearing where the
Defendant denied.he was ever served, denied he ever lived at thi address where service was
allegedly made, and set forth significant discrepancies between the process server's physical
description of him and his actual appearance.
(2nd
34. In FV-1 v. Reid, 138 AD3d 922, 31 NYS3d 119 Dept. 2016), the Appellate
Court reversed the lower court and ordered a traverse hearing where the Defendant averred that he
did not reside at the apartment where the service allegedly took place and could not have been
served at 5:50 am because he would have been traveling to work. In addition, the Affidavit of
Service stated the person served had black hair and a moustache and the Defendant had gray hair
and no moustache.
(2nd
35. In US Bank Trust NA v. Gedcon, 181 AD3d 745 Dept. 2020) the Court held
that: "Supreme Court was empowered to vacate order of reference and the Judgment of
Foreclosure and Sale on the ground of lack ofjurisdiction. (See CPLR 5015 (a)(4); see also Wells
Fargo Bank v. Podeswik, 115 AD3d 207, 212-213ñ921 NYS2d 230). an.
4*
36. In Wells Fargo Bank v. Podeswik, supra, the Appellate Dept. held that: "A
time."
motion to vacate pursuant to CPLR 5015 (a)(4) for lack of jurisdiction may be made at any
,n:d y4eim (seeEditorial Photocolor Archiveidv. Grangerecollum NY2d 517, 523, 474 NYS2d 964,463 NE2d eu$ñ6
'
365; Matter of DeNoto v. DeNotD 96 AD3d 1646.1647, 946 NYS2d 809; Robert F. Wood PC v
Ford, 78 AD2d 585, 585, 432 NYS2d 572).
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(2nd
37. In Sinay v. Schwartzman, 148 AD3d 1068, 50 NYS 3d 141 Dept 2017), the
Court vacated the default judgment entered against the Defendants and ruled that:
"If they were in fact improperly served, the action was never properly
commenced against them, they had no obligation to serve an answer, and
they did not default (see Wells Fargo Bank, N A. v. Besemer, 131 A.D.3d
1047, 16 N.Y.S.3d 819; Emigrant Mtge. Co., Inc. v. Westervelt, 105
..· A.D.3d 964 N.Y.S.2d a x
896, 897, 543)."y
38. Pursuant to CPLR Section
Preview
FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 SUPREME COURT OF STATE OF NEW YORK COUNTY OF NASSAU _________________.._..____________________________..________Ç WEST COAST SERVICING, INC., Plaintiff, -against. Index No.: 605831/2022 MANJIT SINGH; CHAMKAUR DHILLON; ADVANTAGE AFFIRMATION IN ASSETS 11, INC.; PORTFOLIO RECOVERY ASSOCIATES, SUPPORT OF LLC; CAPITAL ONE BANK USA, NA; MIDLAND FUNDING ORDER TO SIIOW LLC; VELOCITY INVESTMENTS, LLC, PETRO, INC.; CAUSE TO VACATE UNIFUND CCR LLC; UNITED STATES OF AMERICA SALE AND STAY (INTERNAL REVENUE SERVICE); HMS INC. ON BEHALF EVICTION OF NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, PTRC INC, Defendant. ________________________.._____________________________Ç Ronald D. Weiss, an attorney duly admitted to practice in the State of New York, affirms under the penalty of perjury as follows: 1. I am the recently retained attorney for the Defendant, MANJIT SINGH (hereinafter "Defendant") in this action commenced by the Plaintiff, WEST COAST SERVICING, INC, (hereinafter "Plaintiff') against the premises commonly known as 23 Valley Lane, Hicksville, NMe 11801 (hereinafter "Premises"). This Affirmation is based upon my discussions with my .clients and a review of the documents that were provided to my office, and which have been filed herein A copy of the Notice of Appearance is annexed hereto as Exhibit A. ot n arar c s ar 2. I am filing this Affirmation in support of the Emergency Offer to Show Gause seeking an Order (a) vacating the foreclosure sale of the Premises because the Defendant was never served with a Notice of Sale; b) staying the transfer of the Deed to the third-party purchaser and 1 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 the execution and filing of any and all post-sale documents, (c) vacating the Defendant's default and the Order of Reference, Judgment of Foreclosure and Sale and staying the eviction based upon CPLR 5015(a)(4) as the Defendant was not properly served with the pleadings in this action where the Plaintiff allegedly effectuated service over the Defendant by nail and mail therefore the Court lacks jurisdiction over the Defendant, or, in the alternative, scheduling a traverse hearing; and the Defendant has meritorious defenses to this 'action (d) dismissing the action due to the mailing of the 90 Day Notices to the Defendant at the incorrect address for such other and further relief as this Court deems just, proper and equitable. 3. In addition, the Summons and Complaint and the Judgment of Foreclosure and Sale have the incorrect address for the subject Premises. The correct address is 23 Valley Lane, Hicksville, NY 11801 and the pleadings have the address of the Premises as 23 Valley Road, Hicksville, NY 11801. 4. I am filing this emergency order to show cause application for an Order: staying the service or filing of any notices or pleadings to obtain possession of the subject Premises or cause the eviction of the Defendant from his home; staying the execution and/or recording of the Referee's Deed regarding the foreclosure sale of the Premises and the transfer of title; staying the execution of the post-salg¶locuments, including, but not limited to Report of Sai erms of Sale, p Memo of Sale and Surplus Money Form, and for such other and further relief as this Court deems just and proper. A foreclosure sale apparently took place on July 13, 2023 to a third-party. m , 5; .. , 4dy nce aptice of the filing of this applicac/on has been.pe ided taÆounsel for the Plaintiff¿ Hanspani & 4Light, PC., the Referee, Janine Lyelai , Esq A edps of the 24-Hour Notification is annexed hereto as Exhibit B. 2 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 6. Counsel attempted to obtain the name and contact information for the third-party purchaser, but the Plaintiff s counsel failed and refused to disclose this information. 7. In particular, the information was requested on July 25, 2023, July 26, 2023, July 27, 2023 and July 28, 2023. Finally, on July 31, 2023, a phone call was placed to Plaintiff's counsel, Hasbani & Light,.P.C. and advised us that they do not have the sale results As of yet. Once are in receipt of the information for the purchaser it will be forwarded to us via e- they third-party mail. Copies of the e-mails between our office and Plaintiffs counsel are annexed hereto as Exhibit C. 8. No prior application has been made for the relief requested herein before this Court or any court of competent jurisdiction. PROCEDURAL HISTORY 9. Based upon a review of NYSCEF, this action was commenced by the Plaintiff by the filing of a Summons and Complaint in the Office of the Nassau County Clerk on April 28, 2022. A copy of the Summons and Complaint together with the Notice of Pendency is annexed hereto as Exhibit D. 10. This case involves the foreclosure of a second mortgage encumbering the residential Premises. According to the Complaint, the unpaid prii1cipal balance on the loan is $24,631.96. set forth in the A davito 1 i gh he is current on his first 1h h9 Supporting mortgag on the subject Premises as evidenced b his recept M.ortgage Statement from Nationstar Mortgage d/b/a Mr. Cooper. A copy of the Mortgage Statement is annexed hereto as Exhibit E. 3 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 12. Pursuant to the Affidavit of Service filed with the Court, service was allegedly effectuated on Defendant by nail and mail at the Premises on June 20, 2022. A copy of the Affidavit of Service is annexed hereto as Exhibit F. 13. As set forth in the supporting Affidavits of the Defendant, he was not served with the SuminonÈ and tomplaint in this action. If he had received thh plerdings, he would have defended the action and attempted to cure his default. 14. The Defendant did not appear in this action or file an Answer to the Summons and Complaint. 15. The Plaintiff moved for an Order of Reference, which was granted on December 2, 2022. A copy of the Order of Reference is annexed hereto as Exhibit G. 16. The Plaintiff moved for a Judgment of Foreclosure and Sale, which was granted on May 11, 2023, and entered on May 12, 2023. A copy of the Judgment of Foreclosure and Sale is annexed hereto as Exhibit H. 17. A foreclosure sale was conducted on July 13, 2023, and, upon information and belief, the Premises was sold to a third-party purchaser. . . NOTICE OF SALE WAS NEVER SERtb ON THE DEFENDANT, WHO WAS .. - , t È NOT PROPERLY SERVED TVITH SUMMONS AND COMPLAINT, AND DEPRIVED OF HIS OPPORTUNITY TO APPEAR IN THE ACTION .. 18. Important protections include.but.are not limited to Real Property Actions and 4 r .. are 231" Proceedings Law Section 231 ("RP PL § and the applicability of Civil Practice I½Ws and . Rules Section 2103 ("CPLR 2103") to the notice of sale phase of the foreclosure process. After'a judgment in a foreclosure proceeding is entered, the lender must comply with RPAPL § 231 and CPLR § 2103. Failure to comply with either of these laws will be met with consequences and must 4 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 result in a successful motion to vacate a sale. 19. Under RPAPL the Court will vacate a sale when the lender/creditor's non- § 231, compliance with the statute prejudiced a substantial right of the borrower/debtor. 20. In Federal Home Loan Mortg. Corp. v. Dutsc Lane Associates, supra, the Court n t that: . "Recognizing New York's personal noticerequirement also comports with fundamental notions of due process by insuring that a person with an established property interest in a building receives notice of its sale. See Mennonite Bd of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). The Court stated that: Notice by mail or other means as certain to ensure actual notice is a minimum constitutional pre-condition to a proceeding which will adversely affect the liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable. 2712." Id. at 800, 103 S.Ct. at 21. In this case, the Plaintiff never served the Defendant with a Notice of Sale. The Defendant was not properly served with the Summons and Complaint in this action and, consequently was deprived of his opportunity to appear in this action and answer the complaint. 22. The prejudice to the Defendant is clear because the Premises was lost to a third- party bidder due to the foreclosure of the second mortgage where the alleged unpaid principal balance was $24,631.96. The Premi s s an estimated market value of $658,600.00. A còIy of b t the Zillow estimate is annexed hereto ad Exhibit I. 23. In addition, the Defendant was deprived of the opportunity to save the Premises by paying off the subjedt tax lien set forth in the supporting Affidakit the: Defen aht,±e i . current on his first mortgage, and s tragic that the Premises was lost due tom forecJosur action by the second mortgagee where the unpaid principal balance is less than $25,000.00. 5 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 IMPROPER SERVICE OF SUMMONS AND COMPLAINT ON DEFENDANT WARRANTS VACATUR OF DEFAULT, ORDER OF REFERENCE AND JUDGMENT OF FORECLOSURE AND SALE PURSUANT TO CPLR 5015(a) (4) AND DISMISSAL OF ACTION OR TRAVERSE HEARING 24. In this case, the Plaintiff has alleged that the Defendant, was served with the Summons and Complaint by nail and mail on June 20, 2022 at the Premises. See Affidavit of service annexed hereto as Exhibit E. 25. As set forth in the supporting Affidavits, the Defendant adamantly denies receipt of the Summons and Complaint. (2nd 26. See Wells Fargo Bank, N A. v. Heaven, 176 A.D.3d 761, 109 N.Y S.3d 162 Dept. 2019). A party who moves to vacate a judgment entered on default on the ground of lack of personal jurisdiction is not required to demonstrate a reasonable excuse for the default or a potentially meritorious defense. See Dime Sav. Bank of Williamsburg v. 146 Ross Realty, 106 (2nd A.D.3d 863, 966 N Y S.2d 443 Dept. 2013). 27. In County ofNassau v. Letosky, 34 AD3d 414, 824 NYS2d 153, the Appellate Court noted that "Although the plaintiff notes that Letosky did not deny receipt of the summons and complaint affixed to the door of her residence, "when the requirements for service of process have documents." not been met, it is irrelevant that defendant may have actually received the (Raschel v. Rish, 69 N.Y.2d 694, 697, 512 N.Y.S.2d 22, 504 N.E.2d 389; see Hillà yv. Grtt e, 213 A.D.2d 620· 967)." 450, 623 N.Y.S.2d Dewey v. Hillcrest Gen. Hosp., 201 A.D.2d 609, 607 N.Y.S.2d 28. At a minimum, I submit that a traverse hearing is requitted totenable the Court to obsetre the witnesses arid determine whether service on the Defendant wasproper.. 29 The Plaintiff failed to properly serve the Defendant, in tliat the Defendant was not personally served, or otherwise served per the requirements of the NY CPLR §308, thereby denying the Defendant due process in this matter. 6 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 30. As stated by the Appellate Term in Tzifil Realty Corp. v. Temammee, 46 Misc 3d 144(A), 15 NYS3d 715 (App. Term 2015), the Court noted that: "It is well settled that a process server's affidavit of service constitutes prima facie evidence of proper service (see Deutsche Bank Natl. Trust Co. v. Quinones, 114 AD3d 719 [2014]; Rox Riv. 83 Partners v. Ettinger, 276 A.D.2d 782 [2000]). In order to rebut this showing and raise an issue of fact necessitating astraverse tenant was required to submit a sworn, denial of service (see NYCTL 1998- hearing, nonconclusory 1 Trust v. Rabinowitz, 7 AD3d 459 [2004] ; see also 25 E. 26th St. Owners Corp. v. Beaton, 50 [1991])." AD3d 845 [2008]; Sando Realty Corp. v. Aris, 209 A.D.2d 682 31. When a Defendant rebuts a process server's affidavit of service, a traverse hearing is required to determine the propriety of service. See Tzifil Realty Corp. v. Temammee, 46 Misc. 3d 144 (A), 15 NYS3d 715, (App. Term 2015). 32. A traverse hearing is warranted when a defendant swears to detailed and specific facts to rebut the statements in the process server's affidavit. See Emigrant Mortgage Co., Inc. v. (2nd Westervelt, 105 A.D.3d 896, 897, 964 NYS 2d 543 Dept. 2013). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service (see Machovec v. Svoboda, 120 A.D.3d at 773, 992 N.Y.S.2d 279 ; Deytsche Bank Natl. Trust Co. v. DaCosta, 97 A.D.3d 630s631., 949 N.Y.S.2d 393 ; Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 344, 756 N.Y.S.2d 92). If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary. At the hearing, the (Burden sis on the plaintiff to prove 'jurisdittion byYaDrependerance of the evidence (see ed MachOvet v. Svoboda, 120 A.D.3d at 773, 992 N.Y.S.2ds79; Matter of Romero v. Ramirez, 100 A.D.3d 909, 910, 955 N.Y.S.2d 353 ; Tikvah Enters., LLC v. Neuman, 80 A.D.3d 748, 749, 915 7 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 508)." (2nd N.Y.S.2d Deutsche Bank National Trust Co. v. O'King, 148 AD3d 776, 51 NYS3d 523 Dept. 2017). (2nd 33. In US Bank v. Giraldo, 192 AD3d 720, 139 NYS 3d 561 Dept. 2021), the Appellate Court reversed the lower court and remitted the matter for a traverse hearing where the Defendant denied.he was ever served, denied he ever lived at thi address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual appearance. (2nd 34. In FV-1 v. Reid, 138 AD3d 922, 31 NYS3d 119 Dept. 2016), the Appellate Court reversed the lower court and ordered a traverse hearing where the Defendant averred that he did not reside at the apartment where the service allegedly took place and could not have been served at 5:50 am because he would have been traveling to work. In addition, the Affidavit of Service stated the person served had black hair and a moustache and the Defendant had gray hair and no moustache. (2nd 35. In US Bank Trust NA v. Gedcon, 181 AD3d 745 Dept. 2020) the Court held that: "Supreme Court was empowered to vacate order of reference and the Judgment of Foreclosure and Sale on the ground of lack ofjurisdiction. (See CPLR 5015 (a)(4); see also Wells Fargo Bank v. Podeswik, 115 AD3d 207, 212-213ñ921 NYS2d 230). an. 4* 36. In Wells Fargo Bank v. Podeswik, supra, the Appellate Dept. held that: "A time." motion to vacate pursuant to CPLR 5015 (a)(4) for lack of jurisdiction may be made at any ,n:d y4eim (seeEditorial Photocolor Archiveidv. Grangerecollum NY2d 517, 523, 474 NYS2d 964,463 NE2d eu$ñ6 ' 365; Matter of DeNoto v. DeNotD 96 AD3d 1646.1647, 946 NYS2d 809; Robert F. Wood PC v Ford, 78 AD2d 585, 585, 432 NYS2d 572). 8 of 11 FILED: NASSAU COUNTY CLERK 08/03/2023 02:17 PM INDEX NO. 605831/2022 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/03/2023 (2nd 37. In Sinay v. Schwartzman, 148 AD3d 1068, 50 NYS 3d 141 Dept 2017), the Court vacated the default judgment entered against the Defendants and ruled that: "If they were in fact improperly served, the action was never properly commenced against them, they had no obligation to serve an answer, and they did not default (see Wells Fargo Bank, N A. v. Besemer, 131 A.D.3d 1047, 16 N.Y.S.3d 819; Emigrant Mtge. Co., Inc. v. Westervelt, 105 ..· A.D.3d 964 N.Y.S.2d a x 896, 897, 543)."y 38. Pursuant to CPLR Section