Preview
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024
NYC DEPARTMENT OF FINANCE
OFFICE OF THE CITY REGISTER
This page is part of the instrument. The City
Register will rely on the information provided
by you on this page for purposes of indexing
this instrument.The information on this page
will control for indexing purposes in the event
of any conflict with the rest of the document.
2017032300332001003EA884
RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 7
Document ID: 2017032300332001 Document Date: 08-15-2016 Preparation Date:05-24-2017
Document Type: COURT ORDER
Document Page Count: 5
PRESENTER: RETURN TO:
JUDICIAL RESEARCH - PICKUP CHARLIE KIM
800 WESTCHESTER AVENUE HAN & ASSOCIATES, PC
027259 LS EF 42 BROADWAY, 12TH FLOOR
RYE BROOK, NY 10573 NEW YORK, NY 10004
914-381-6700
JRRECORDING@JUDICIALTITLE.COM
PROPER'1Y DATA
Borough Block Lot Unit Address
BRONX 4666 36 Entire Lot 715 EAST 218 STREET
Property Type: DWELLING ONLY - 2 FAMILY
CROSS REFERENCE DATA
or or or
CRFN DocumentID Year Reel_ Page_ File Number
PARTIES
PARTY 1/GRANTOR: PARTY 2/GRANTEE:
JPMORGAN MORTGAGE ACQUISITION CORP IHEANACHOR NJOKU
7880 BENT BRANCH DRIVE, SUITE 150 715 E. 218TH STREET, APT 2
IRVING, TX 75063 BRONX, NY 10467
El Additional Parties Listed on Continuation Page
FEES AF D TAXES
Mortgage : Filing Fee:
Mortgage Amount: $ 0.00 $ 0.00
Taxable Mortgage Amount: $ 0.00 NYC Real Property Transfer Tax:
Exemption: $ 0.00
TAXES: County (Basic): $ 0.00 NYS Real Estate Transfer Tax:
City (Additional): $ 0.00 $ 0.00
Spec (Additional): $ 0.00 RECORDED OR FILED IN THE OFFICE
TASF: $ 0.00 O F THE CITY REGISTER OF THE
MTA: $ 0.00
CITY OF NEW YORK
NYCTA: $ 0.00
Recorded/Filed 05-30-2017 10:33
Additional MRT: $ 0.00
City Register File No.(CRFN):
TOTAL: $ 0.00 2017000198669
Recording Fee: $ 62.00
Affidavit Fee: $ 0.00
City Register Official Signature
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024
NYC DEPARTMENT OF FINANCE
OFFICE OF THE CITY REGISTER
2017032300332001003CAA04
RECORDING AND ENDORSEMENT COVER PAGE (CONTINUATION) PAGE 2 OF 7
Document ID: 2017032300332001 Document Date: 08-15-2016 Preparation Date: 05-24-2017
Document Type: COURT ORDER
PARTIES
PARTY 2/GRANTEE: PARTY 2/GRANTEE:
MORTGAGE ELECTRONIC REGISTRATION NEW YORK CITY DEPARTMENT OF HOUSING
SYSTEMS, INC PRESERVATION
AS NOMINEE FOR AMERICAN HOME AND DEVELOPMENT, 100 CHURCH STREET, FL 4
MORTGAGE, ONE COMMERCE PLAZA, 99 NEW YORK, NY 10007
PARTY 2/GRANTEE: PARTY 2/GRANTEE:
NEW YORK CITY TRANSIT ADJUDICATION BUREAU SHAWN KIDD
130 LIVINGSTON STREET 715 E. 218TH STREET, APT 2
BROOKLYN, NY 11201 BRONX, NY 10467
PARTY 2/GRANTEE: PARTY 2/GRANTEE:
KELLY LUKE LISA JACKSON
715 E. 218TH STREET, APT 2 715 E. 218TH STREET, APT 2
BRONX, NY 10467 BRONX, NY 10467
PARTY 2/GRANTEE:
TRACEY KIDD
715 E. 218TH STREET, APT 2
BRONX, NY 10467
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024
Certificatic
STATE OF NEW YORK, COUNTY OF BRONX, SS:
uis M. Diaz, County QL91180sLClerksf unremie court aronx cou
do hereby certify
thñon Marc t$ 20di have compared
th ocurnerit attached Her o,
3/2011 Notice of Er NÓT1G¶QI81 NTRY d 10/11/2016 page(s)
with e originals file in my office nd the san(e s a correct tra script
t rel sq and t o s r inal idÂ: e
elv6)ly
whereto.1 ha affixed Iny sign ture andseal.
LUIS M. DIAZ
BRONX COUNTY CLERK
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024
. - __
Noticeof EntryNOTICEOFENTRY
38111312011
FILED Oct 11 2016 Bronx County Clerk
. riu-u to zU in tsronxvourity uern
Aug
SUPREME COURT OF THE STATE OF NEW Y RK
COUNTY OF BRONX: Part 13
J.P.MORGAN MORTGAGE ACQUISITION CO .
Plaintiff,
v. Index No. 3811t3-11
IHEANACHOR NJOKU; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., as nominee foS AMERICAN
HOME MORTGAGE; NEW YORK CITY DEPAl TMENT OF
HOUSING PRESERVATION AND DEVELOPMENT; NEW
YORK CITY TRANSIT ADJUDICATION BUREAU; SHAWN
KIDD; KELLY LUKE; LISA JACKSON; TRACEiY KIDD,
Defendants.
DECISION
In this residential foreclosures Defendant- r. Njoku, Sr. moves, through counsel,
case,
{OSC]'
by Order to Show Cause under CPLR 5015(a) "Relief from judgment or order") to
vacate the foreclosures sale, Referee's deed, and judgment of foreclosure and sale.
Previously, Mr. Njoku, Sr. filed an OSC dated August 2015, which was filed by Mt.
lawyer.2
Njoku Sr.'s previous
AAct careful review of the 6 July 2016 OSC and appearances by counsel, this Court
hereby decides the following:
I
- Defendant's OSC is GRANTED TO TItE EXTENT that the foreclosures sa>e,
Referee's deed, and judgment of foreclo ure and sale are vacated so that
Defendant's proposed Answer can be intemosed within twenty {20] business Æays
from the date Notice of Entry is filed
' This is Defendant's
OSC dated on or about 6 July 2016, which is a post-sale appNcation for vacatur of the
judgment of fonclosure and sale,
* On or about 4
August 2015, Mr. Njoku, Sr., through counsel, file an OSC to vacate default judgment and
temperaty restraining order of Plaintiff from bolding a public auctiðn of the subject premises. On 24 August 20 5,
this Court denied Mr. Njoku Sr.'s TRO, despite this Court's urroneous "grant," found in the Short Form Order. ·he
5 October 2016 sua sporite Order clarified this reversible error.
Printsd:3/13/20
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 ----------pagree
RECEIVED NYSCEF: 01/23/2024
Noticeof EntryNOTICEOF ENTRY
181113/2011
Bronx County Clerk
FILED Oct 11 2016
to 3u i o tsronx Lounty biers .
nLtu mg
Mr. Njoku, Sr. seeks vacatur of the sale, deed, and judgment, asserting that there Was
10.3
improper service of the summons and complaint. St 28 June 2016 Karlson Aff. at ¶ Fle
further attests that he never saw any indication of añ xations on his Georgia door. Sg 4 August
2016 Njoku, Sr. Aff. at ¶ 6. Mr. Njoku, Sr. also seek vacatur, claiming that the judgment of
foreclosure and sale was based on fraud. ld. at ¶ 11.
If the defaulting defendant claims that the cot rt lacked personal jurisdiction over him/her,
the defendant should seek dismissal of the action und r CPLR5015(a)(4). Wells Fargo BaIk.
N.A. v. Jones, 139 AD3d 520, 522 (App Div, Ist Dept 2016); acg ajgt 28 June 2016 Karlson Aff.
at 120. Only if jurisdiction is sustained, need the court go on to the paragraph I discretionary
ground, should the court Grst rule on the paragraph 4 jurisdictional point of CPLR 5015(a). S_g
David D. Siegel, Practice Commentaries, McKinney's Cons. Law ofNY, Book 7B, CPLR
C5015:9; Jones, 139 AD3d at 522; gg ajgo 28 June 2016 Karlson Aff. at 1 24.
Here, vacatur of the judgment of foreclosure of sale is warranted because timely service
improper.4
was Thus, there is no need to reach the discretionary portion of vacatur. Under CPLR
person'
308(2) & (4) ("Personal service upon a natural , service requires filing the affidavit of
service with the correct clerk of the court within twent [20] days of delivery or mailing.
Mr. Njoku Sr. attested that service of the Sumnions and Complaint was improper. $3 4
August 2016 Njoku Aff. at ¶¶ 3-5; gg gle 3 August 2( 16 Karlson Reply. at Exh. B. There is no
evidentiary proof that the affidavit from process server lilberto E. Howell was properly file
with Bronx County Clerk. Sg 3 August 2016 Karlson at Exh. D. In contrast, Plaintiff
Iteply
'
The judgment or foreclosure and sale was filed with Bronx Coun y Clerk on or about 15 June 2015. Sgg 28 June
2016 Karlson Aff. at Exh. A. The auction was on 24 August 2015, in which Plaintifrbought the subjcot premises. ld.
'
at Exh. E.
2
prin t 3ns/20
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO.
of
43 RECEIVED NYSCEF: 01/23/2024
M1113/2011
Notice EnhyNOTICEOFENTRY
FILED Oct 11 2016 Bronx Clerk
County
en-tw twg Io 40 so tsronx uern
county
I
argues that Mr. Njoku, Sr. failed to give a reasonable e: suse or a meritorious defense for his
default. Seg 28 July 2016 Robinson Opp. at 121.
This Court finds that Mr. Njoku has a meritorio defense and reasonable excuse because
service was improper in New York and Georgia.Sg 2 June 2016 Njoku, Sr. Aff. at M 9, 14-15;
see 31s9 4 August 2016 Njoku, Sr. Aff. at 5, 7, 9. M importantly, Plaintiff failed to submit
rebuttal affidavits from Mssrs. Oilberto E. Howell [Ge6rgia process server], Robert
Winckelmann [New York process server] and Ms. Jolitta Gholson [get 28 June 2016 Karlsch
Aff, at Exh. El with respect to this post-judgment of foreclosure and sale to refute any alleged
fraud and to explain proper service, if any.
mail"
According to the Howell affidavit of service, h used "nail and service upon Mr.
Njoku, Sr. at his Georgia home. S_m Karlson Reply at 3xh. D. Service under CPLR 308(4) (a/k/a
"nail and mail"] may be used only where service under CPLR 308(1) or (2) cannot be made with
due diligence.Estate ofWaterman v. Jones, 46 AD3d 3, 65 (App Div, 2d Dept 2007).
Here, it is not enough for Plaintiff's counsel t claim that their affidavits were filed avith
Clerk5
Bronx County and that attaching affidavits of sbrvice would sutlice as effectuated service,
without further proof in the form of rebuttal affidavits for this OSC to show that due diligence
was made. §n Hochhauser v. Bungeroth, 179 AD2d 3 I (App Div, 1st Dept 1992) (where the
diligence"
First Department held that there is no rigid rule to determine whether "due was psed
mail"
in atternpting to effect service so as to allow "nail and service instead).
Accordingly, vacatur is warranted, as Plainti failed to submit substantive rebunal
affidavits addressing points of contention such as proper service of the summons and comgilaint,
fraud, and prejudice suffered by Plaintiff. Accordingly, a traverse hearing is unnecessary.
5
3g3 28 juty 2016 Robinson Opp. at ¶ 19. Mr. Njoku, Sr.'s cou sel contests.that the subject affidavits of service
were t'iled with Bronx County Clerk.
Prin : 3/13/20
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024
Noticeof EntryNOTICEOFENTRY
18t113/2011
FILED Oct 11 2016 Bronx County Clerk
reu-u nug ro au in oronx uern
county
When the plaintiff has shown no prejudice to its cause, the policy of this Court favors
disposition of actions on the merits. Goodwin v. NYC IA, 78 AD3d 550, 551 (App Div, 1st Dept
2010); Emery Roth & Sons v. Naft Kinney Corp., 67 AD2d 62) (App Div, 1st Dept 1979); Zissa
Lore, Halper & Robson v. Siegel, 60 AD2d 531, 532 App Div, ist Dept 1977). Here, since
Plaintiff failed to expound on any prejudice, vacatur i warranted so that the parties can fully
resolve this case on its merits.
In sum, Mr. Njoku's OSC to vacate the judgrÔent of foreclosure and sale is GRAN ED
TO THE EXTENT that an Answer will be interposed within twenty [20] business days from the
date '
Notice of Entry was entered. There was imprope service upon Mr. Njoku, Sr. Accordingly,
Plaintiffs foreclosures sale, Referce's deed, and judg nent of foreclosure and sale are
I
VACATED. Mr. Njoku Sr.'s counsel is ORDEREDito file Notice of Entry within fourteen [14
business days from the date this Order is entered.
This constitutes the Decision and Order of th Court.
Dated: August 15, 2016
Bronx, NY Hon. F rnando Tapia, .S.C
4
Printeld:3/13/20
Preview
FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024 NYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER This page is part of the instrument. The City Register will rely on the information provided by you on this page for purposes of indexing this instrument.The information on this page will control for indexing purposes in the event of any conflict with the rest of the document. 2017032300332001003EA884 RECORDING AND ENDORSEMENT COVER PAGE PAGE 1 OF 7 Document ID: 2017032300332001 Document Date: 08-15-2016 Preparation Date:05-24-2017 Document Type: COURT ORDER Document Page Count: 5 PRESENTER: RETURN TO: JUDICIAL RESEARCH - PICKUP CHARLIE KIM 800 WESTCHESTER AVENUE HAN & ASSOCIATES, PC 027259 LS EF 42 BROADWAY, 12TH FLOOR RYE BROOK, NY 10573 NEW YORK, NY 10004 914-381-6700 JRRECORDING@JUDICIALTITLE.COM PROPER'1Y DATA Borough Block Lot Unit Address BRONX 4666 36 Entire Lot 715 EAST 218 STREET Property Type: DWELLING ONLY - 2 FAMILY CROSS REFERENCE DATA or or or CRFN DocumentID Year Reel_ Page_ File Number PARTIES PARTY 1/GRANTOR: PARTY 2/GRANTEE: JPMORGAN MORTGAGE ACQUISITION CORP IHEANACHOR NJOKU 7880 BENT BRANCH DRIVE, SUITE 150 715 E. 218TH STREET, APT 2 IRVING, TX 75063 BRONX, NY 10467 El Additional Parties Listed on Continuation Page FEES AF D TAXES Mortgage : Filing Fee: Mortgage Amount: $ 0.00 $ 0.00 Taxable Mortgage Amount: $ 0.00 NYC Real Property Transfer Tax: Exemption: $ 0.00 TAXES: County (Basic): $ 0.00 NYS Real Estate Transfer Tax: City (Additional): $ 0.00 $ 0.00 Spec (Additional): $ 0.00 RECORDED OR FILED IN THE OFFICE TASF: $ 0.00 O F THE CITY REGISTER OF THE MTA: $ 0.00 CITY OF NEW YORK NYCTA: $ 0.00 Recorded/Filed 05-30-2017 10:33 Additional MRT: $ 0.00 City Register File No.(CRFN): TOTAL: $ 0.00 2017000198669 Recording Fee: $ 62.00 Affidavit Fee: $ 0.00 City Register Official Signature FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024 NYC DEPARTMENT OF FINANCE OFFICE OF THE CITY REGISTER 2017032300332001003CAA04 RECORDING AND ENDORSEMENT COVER PAGE (CONTINUATION) PAGE 2 OF 7 Document ID: 2017032300332001 Document Date: 08-15-2016 Preparation Date: 05-24-2017 Document Type: COURT ORDER PARTIES PARTY 2/GRANTEE: PARTY 2/GRANTEE: MORTGAGE ELECTRONIC REGISTRATION NEW YORK CITY DEPARTMENT OF HOUSING SYSTEMS, INC PRESERVATION AS NOMINEE FOR AMERICAN HOME AND DEVELOPMENT, 100 CHURCH STREET, FL 4 MORTGAGE, ONE COMMERCE PLAZA, 99 NEW YORK, NY 10007 PARTY 2/GRANTEE: PARTY 2/GRANTEE: NEW YORK CITY TRANSIT ADJUDICATION BUREAU SHAWN KIDD 130 LIVINGSTON STREET 715 E. 218TH STREET, APT 2 BROOKLYN, NY 11201 BRONX, NY 10467 PARTY 2/GRANTEE: PARTY 2/GRANTEE: KELLY LUKE LISA JACKSON 715 E. 218TH STREET, APT 2 715 E. 218TH STREET, APT 2 BRONX, NY 10467 BRONX, NY 10467 PARTY 2/GRANTEE: TRACEY KIDD 715 E. 218TH STREET, APT 2 BRONX, NY 10467 FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024 Certificatic STATE OF NEW YORK, COUNTY OF BRONX, SS: uis M. Diaz, County QL91180sLClerksf unremie court aronx cou do hereby certify thñon Marc t$ 20di have compared th ocurnerit attached Her o, 3/2011 Notice of Er NÓT1G¶QI81 NTRY d 10/11/2016 page(s) with e originals file in my office nd the san(e s a correct tra script t rel sq and t o s r inal idÂ: e elv6)ly whereto.1 ha affixed Iny sign ture andseal. LUIS M. DIAZ BRONX COUNTY CLERK FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024 . - __ Noticeof EntryNOTICEOFENTRY 38111312011 FILED Oct 11 2016 Bronx County Clerk . riu-u to zU in tsronxvourity uern Aug SUPREME COURT OF THE STATE OF NEW Y RK COUNTY OF BRONX: Part 13 J.P.MORGAN MORTGAGE ACQUISITION CO . Plaintiff, v. Index No. 3811t3-11 IHEANACHOR NJOKU; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee foS AMERICAN HOME MORTGAGE; NEW YORK CITY DEPAl TMENT OF HOUSING PRESERVATION AND DEVELOPMENT; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; SHAWN KIDD; KELLY LUKE; LISA JACKSON; TRACEiY KIDD, Defendants. DECISION In this residential foreclosures Defendant- r. Njoku, Sr. moves, through counsel, case, {OSC]' by Order to Show Cause under CPLR 5015(a) "Relief from judgment or order") to vacate the foreclosures sale, Referee's deed, and judgment of foreclosure and sale. Previously, Mr. Njoku, Sr. filed an OSC dated August 2015, which was filed by Mt. lawyer.2 Njoku Sr.'s previous AAct careful review of the 6 July 2016 OSC and appearances by counsel, this Court hereby decides the following: I - Defendant's OSC is GRANTED TO TItE EXTENT that the foreclosures sa>e, Referee's deed, and judgment of foreclo ure and sale are vacated so that Defendant's proposed Answer can be intemosed within twenty {20] business Æays from the date Notice of Entry is filed ' This is Defendant's OSC dated on or about 6 July 2016, which is a post-sale appNcation for vacatur of the judgment of fonclosure and sale, * On or about 4 August 2015, Mr. Njoku, Sr., through counsel, file an OSC to vacate default judgment and temperaty restraining order of Plaintiff from bolding a public auctiðn of the subject premises. On 24 August 20 5, this Court denied Mr. Njoku Sr.'s TRO, despite this Court's urroneous "grant," found in the Short Form Order. ·he 5 October 2016 sua sporite Order clarified this reversible error. Printsd:3/13/20 FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 ----------pagree RECEIVED NYSCEF: 01/23/2024 Noticeof EntryNOTICEOF ENTRY 181113/2011 Bronx County Clerk FILED Oct 11 2016 to 3u i o tsronx Lounty biers . nLtu mg Mr. Njoku, Sr. seeks vacatur of the sale, deed, and judgment, asserting that there Was 10.3 improper service of the summons and complaint. St 28 June 2016 Karlson Aff. at ¶ Fle further attests that he never saw any indication of añ xations on his Georgia door. Sg 4 August 2016 Njoku, Sr. Aff. at ¶ 6. Mr. Njoku, Sr. also seek vacatur, claiming that the judgment of foreclosure and sale was based on fraud. ld. at ¶ 11. If the defaulting defendant claims that the cot rt lacked personal jurisdiction over him/her, the defendant should seek dismissal of the action und r CPLR5015(a)(4). Wells Fargo BaIk. N.A. v. Jones, 139 AD3d 520, 522 (App Div, Ist Dept 2016); acg ajgt 28 June 2016 Karlson Aff. at 120. Only if jurisdiction is sustained, need the court go on to the paragraph I discretionary ground, should the court Grst rule on the paragraph 4 jurisdictional point of CPLR 5015(a). S_g David D. Siegel, Practice Commentaries, McKinney's Cons. Law ofNY, Book 7B, CPLR C5015:9; Jones, 139 AD3d at 522; gg ajgo 28 June 2016 Karlson Aff. at 1 24. Here, vacatur of the judgment of foreclosure of sale is warranted because timely service improper.4 was Thus, there is no need to reach the discretionary portion of vacatur. Under CPLR person' 308(2) & (4) ("Personal service upon a natural , service requires filing the affidavit of service with the correct clerk of the court within twent [20] days of delivery or mailing. Mr. Njoku Sr. attested that service of the Sumnions and Complaint was improper. $3 4 August 2016 Njoku Aff. at ¶¶ 3-5; gg gle 3 August 2( 16 Karlson Reply. at Exh. B. There is no evidentiary proof that the affidavit from process server lilberto E. Howell was properly file with Bronx County Clerk. Sg 3 August 2016 Karlson at Exh. D. In contrast, Plaintiff Iteply ' The judgment or foreclosure and sale was filed with Bronx Coun y Clerk on or about 15 June 2015. Sgg 28 June 2016 Karlson Aff. at Exh. A. The auction was on 24 August 2015, in which Plaintifrbought the subjcot premises. ld. ' at Exh. E. 2 prin t 3ns/20 FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. of 43 RECEIVED NYSCEF: 01/23/2024 M1113/2011 Notice EnhyNOTICEOFENTRY FILED Oct 11 2016 Bronx Clerk County en-tw twg Io 40 so tsronx uern county I argues that Mr. Njoku, Sr. failed to give a reasonable e: suse or a meritorious defense for his default. Seg 28 July 2016 Robinson Opp. at 121. This Court finds that Mr. Njoku has a meritorio defense and reasonable excuse because service was improper in New York and Georgia.Sg 2 June 2016 Njoku, Sr. Aff. at M 9, 14-15; see 31s9 4 August 2016 Njoku, Sr. Aff. at 5, 7, 9. M importantly, Plaintiff failed to submit rebuttal affidavits from Mssrs. Oilberto E. Howell [Ge6rgia process server], Robert Winckelmann [New York process server] and Ms. Jolitta Gholson [get 28 June 2016 Karlsch Aff, at Exh. El with respect to this post-judgment of foreclosure and sale to refute any alleged fraud and to explain proper service, if any. mail" According to the Howell affidavit of service, h used "nail and service upon Mr. Njoku, Sr. at his Georgia home. S_m Karlson Reply at 3xh. D. Service under CPLR 308(4) (a/k/a "nail and mail"] may be used only where service under CPLR 308(1) or (2) cannot be made with due diligence.Estate ofWaterman v. Jones, 46 AD3d 3, 65 (App Div, 2d Dept 2007). Here, it is not enough for Plaintiff's counsel t claim that their affidavits were filed avith Clerk5 Bronx County and that attaching affidavits of sbrvice would sutlice as effectuated service, without further proof in the form of rebuttal affidavits for this OSC to show that due diligence was made. §n Hochhauser v. Bungeroth, 179 AD2d 3 I (App Div, 1st Dept 1992) (where the diligence" First Department held that there is no rigid rule to determine whether "due was psed mail" in atternpting to effect service so as to allow "nail and service instead). Accordingly, vacatur is warranted, as Plainti failed to submit substantive rebunal affidavits addressing points of contention such as proper service of the summons and comgilaint, fraud, and prejudice suffered by Plaintiff. Accordingly, a traverse hearing is unnecessary. 5 3g3 28 juty 2016 Robinson Opp. at ¶ 19. Mr. Njoku, Sr.'s cou sel contests.that the subject affidavits of service were t'iled with Bronx County Clerk. Prin : 3/13/20 FILED: BRONX COUNTY CLERK 01/23/2024 08:56 AM INDEX NO. 807663/2023E NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/23/2024 Noticeof EntryNOTICEOFENTRY 18t113/2011 FILED Oct 11 2016 Bronx County Clerk reu-u nug ro au in oronx uern county When the plaintiff has shown no prejudice to its cause, the policy of this Court favors disposition of actions on the merits. Goodwin v. NYC IA, 78 AD3d 550, 551 (App Div, 1st Dept 2010); Emery Roth & Sons v. Naft Kinney Corp., 67 AD2d 62) (App Div, 1st Dept 1979); Zissa Lore, Halper & Robson v. Siegel, 60 AD2d 531, 532 App Div, ist Dept 1977). Here, since Plaintiff failed to expound on any prejudice, vacatur i warranted so that the parties can fully resolve this case on its merits. In sum, Mr. Njoku's OSC to vacate the judgrÔent of foreclosure and sale is GRAN ED TO THE EXTENT that an Answer will be interposed within twenty [20] business days from the date ' Notice of Entry was entered. There was imprope service upon Mr. Njoku, Sr. Accordingly, Plaintiffs foreclosures sale, Referce's deed, and judg nent of foreclosure and sale are I VACATED. Mr. Njoku Sr.'s counsel is ORDEREDito file Notice of Entry within fourteen [14 business days from the date this Order is entered. This constitutes the Decision and Order of th Court. Dated: August 15, 2016 Bronx, NY Hon. F rnando Tapia, .S.C 4 Printeld:3/13/20