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NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019
SUPREME COURT OF THE STATE OF NEW YORK Return Date: 3/4/2019
COUNTY OF NASSAU Hon. Julianne T. Capetola
------------------------------------ -- --- -¬x Index No. 608673/2017
DBW TL HOLDCO 2014, LLC,
Plaintiff,
AFFIRMATION IN
OPPOSITION TO PLAINTIFF'S
MOTION
-against-
ROBERT P. KIRK, JR. a/k/a ROBERT KIRK, JR. a/k/a
ROBERT P. KIRK, KATHLEEN M. KIRK, a/k/a
KATHLEEN KIRK, MIDLAND FUNDING LLC, LI
ANESTHESIOLOGIST PLLC, PEOPLE OF THE
STATE OF NEW YORK, TARGET NATIONAL BANK,
COUNTY OF NASSAU, and KIERAN KIRK S/H/A JOHN DOE
NO. 1,
Defendants.
-------- ---- ----------x
I,John R. Lewis, Jr., Esq., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms under the penalties of perjury as follows:
1. I am a member of John R. Lewis, Jr., Esq., P.C, attorneys for the defendant
("Defendant"
Kathleen M. Moran s/h/a KATHLEEN M. KIRK a/k/a KATHLEEN KIRK and/or
"Moran") and, as such, I am fully familiar with the facts and circumstances of this action.
2. This affirmation is respectfully submitted in opposition to Plaintiff, DBW TL
HOLDCO 2014, LLC's, (hereinafter "Plaintiff") motion seeking entry of a Judgment of
Foreclosure and Sale with an award of legal fees, costs and disbursements.
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BACKGROUND/PROCEDURAL HISTORY
3. Plaintiff commenced this action on August 24, 2017 seeking to foreclose on a Tax
Lien with regards to real property commonly known as 2 Sixth Avenue, Farmingdale, New York
11735 (the subject "Property") by E-filing a Summons in Tax Lien Foreclosure and Complaint.
(See, Exhibit "1")
4. On October 4, 2017 defendant ROBERT P. KIRK, JR. a/k/a ROBERT KIRK, JR.
a/k/a ROBERT P. KIRK, ("Defendant Kirk") submitted his answer to Plaintiff's Complaint.
(See, NYSCEF Doc #13)
5. On November 6, 2017 Moran filed a pre-answer motion seeking dismissal for
Plaintiff's failure to acquire personal jurisdiction over her; to which Plaintiff submitted
opposition and Moran replied thereto. (See, NYSCEF Doc #14)
6. On December 21, 2017 Plaintiff filed a motion seeking summary judgment in its
favor and solely against Defendant Kirk. (See, NYSCEF Doc #42)
7. By Decision and Order on Motion, dated December 20, 2017 and entered
December 22, 2017, this Court ordered a traverse hearing to determine if Moran was properly
served (See, NYSCEF Doc #56) and on January 15, 2018 Plaintiff filed a motion seeking to
extend itstime to serve Moran. (See, NYSCEF Doc #60)
8. On January 24, 2018 the parties appeared before the Honorable Daniel Palmieri
ready to go forward with the traverse hearing but reached an agreement. Pursuant to the
stipulation, spread upon the record, Moran agreed to personal jurisdiction of the Court with
Plaintiff agreeing to give Moran until February 21, 2018 to file an answer. (See, NYSCEF Doc
#74)
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9. On February 6, 2018 Plaintiff withdrew itsmotion seeking an extension of time to
serve Moran. (See, NYSCEF Doc #73)
10. On February 21, 2018 Moran filed her Verified Answer to Plaintiff's Complaint.
(See, Exhibit "2")
11. On March 29, 2018 Defendant Kirk filed opposition to Plaintiff's motion seeking
summary judgment solely against him (See, NYSCEF Doc #80) to which Plaintiff replied on
April 17, 2018. (See, NYSCEF Does #82-89)
12. On April 24, 2018 Plaintiff's motion with regards to Defeñdâñt Kirk was granted
by Order of this Court. (See, NYSCEF Doc #111)
13. On May 24, 2018 Defendant Kirk filed a motion seeking leave to renew/reargue
this Court's decision dated April 24, 2018. (See, NYSCEF Does #114-122)
14. On June 14, 2018 Moran's cross-moved seeking summary judgment in her favor
and/or for the dismissal of this action for Plaintiff's failure to comply with a condition precedent.
(See, NYSCEF Does #125-136)
15. After hearing oral argument, this Court by Decision and Order dated October 22,
2018 granted that branch of Defendant Kirk's motion seeking leave to renew and upon renewal
adhered to itsprior determination granting Plaintiff summary judgment as to him. This Court
also determined that "...defective service, or lack of service, of the notice to redeem is not a
complaint"
jurisdictional defect nor is it fatal to the and denied Moran's cross-motion and
granted Plaintiff's motion in its entirety.
16. Plaintiff's instant motion now seeks an Order confirming the Referee's Report,
entry of a Judgment of Foreclosure and Sale with an award of legal fees, costs and
disbursements.
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17. Moran opposes that branch of Plaintiff's motion seeking an award of legal fees
against Moran insofar as Plaintiff failed to serve Moran with a Notice to Redeem "...by personal
York"
service, as defined in the Civil Practice Law and Rules of the State of New prior to
commencing this action as required by Nassau County Administrative Code section 5-51.0(c) to
be entitled to such.
ARGUMENT
18. Nassau County Administrative Code section 5-51.0(c) provides in relevant part;
"A holder of a tax lien shall serve notice on the owner in fee as appearing of
record for said premises classified as class one or of a residential condominium
classified as class two by personal service, as defined in the Civil Practice Law
and Rules of the State of New York when said owner is a resident of Nassau
County;..."
(emphasis added)
19. In the case at bar, Moran is a resident of Nassau County residing at the subject
Property, 2 Sixth Avenue, Farmingdale, New York 11735, and therefore, prior to the
commencement of this action, Plaintiff was required to serve Moran with the Notice to Redeem
by personal service as defined in the Civil Practice Law and Rules and Moran properly asserted
Plaintiff's failure to do so as an affirmative defense in her answer. (See, Moran's Affidavit)
person"
20. CPLR §308 titled "Personal service upon a natural explains how
service"
"personal upon a natural person is made. That section provides for five methods of
service" -
"personal "personal delivery", "substituted service", "service on a designated agent",
mail"
"affix and and the varied forms of service available under CPLR §308(5). See generally,
Kovachman v. Paige Mgt. & Consulting, LLC, 121 A.D.3d 951, 952, 995 N.Y.S.2d 115, 116,
(2d Dept., 2014) ["...the other means set forth in CPLR §308 constitute personal service..."]
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21. In the case at bar, Plaintiff alleges, by way of the affidavit of its process server
John Downs, ("Downs") service of the Notice to Redeem upon Moran was accomplished
mail."
pursuant to CPLR §308(4), commonly referred to as "nail and (See, Exhibit "3")
22. Pursuant to CPLR §308(4) service may be made "by affixing the summons to the
abode"
door of either the actual place of business, dwelling place or usual place of only where
the alternate methods of personal service provided for in CPLR §308(1) or (2) "cannot be made
diligence"
with due [CPLR §308(4)].
23. The due diligence requirement of CPLR § 308(4) must be strictlyobserved; given
the reduced likelihood that papers served pursuant to that section will be received. See,
O'Connell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441, 442 (2d Dept., 2006) [requiring strict
compliance with the due diligence requirement of CPLR §308(4)]; Scott v. Knoblock, 204
A.D.2d 299, 611 N.Y.S.2d 265 (2d Dept., 1994) [noting the due diligence requirement of CPLR
§308(4) is to be strictly observed]; Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d
335 (2d Dept., 1985) [same]
diligence"
24. Although "due is not defined in the statutory framework, the term has
been interpreted and applied on a case-by-case basis, focusing not on the quantity of the attempts
at personal delivery, but on their quality. See, Estate of Waterman v. Jones, 46 A.D.3d 63, 66,
843 N.Y.S.2d 462, 464 (2d Dept., 2007) [due diligence requirement refers to the quality of the
efforts]; Barnes v. New York, 70 A.D.2d 580, 416 N.Y.S.2d 52 (2d Dept., 1979) affd 51 N.Y.2d
906, 415 N.E.2d 979, 434 N.Y.S.2d 991 (N.Y., 1980)
25. In the case at bar, Plaintiff has not shown that the requirements of CPLR §308(4)
have been satisfied. Down's affidavit alleges personal service was attempted on only two dates,
both weekdays, specifically; Wednesday January 13, 2016 at 6:40 p.m. and Thursday January 14,
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2016 at 10:17 a.m., prior to the alleged affixing on January 15, 2016 at 8:33 a.m., also a
weekday. (See, Exhibit "3")
26. The Appellate Division, Second Department has held that two prior attempts,
before the affixing, are insufficient to establish due diligence. See, County of Nassau v.
Yohannan, 34 A.D.3d 620, 621, 824 N.Y.S.2d 431, 432 (2d Dept., 2006) ["Before affixing a
defendants'
copy of the summons and complaiñt on the front door of the residence, the plaintiff's
process server made two attempts at service, both on weekdays, during hours when it
only
reasonably could have been expected that the defeñdâñts were either working or in transit to or
work"
from (insufficient to establish due diligeñce)]; County of Nassau v. Letog.k_y, 34 A.D.3d
414, 415, 824 N.Y.S.2d 153, 154 (2d Dept., 2006) ["Two of the three attempts at service were
made on weekdays hours when it
reasonably could have been expected that Letosky was
during
work"
either or in transit to (insufficient to establish due diligence)]; McGreevy v.
working
Simon, 220 A.D.2d 713, 714, 633 N.Y.S.2d 177, 178 (2d Dept., 1995) [two attempts at such
service were insufficient to warrant resort to affix and mail service under CPLR 6308(4)l
27. Here, like in County of Nassaa v. Letosky, supra, and County of Nassaü v.
Bhannan, supra, the affidavit of Plaintiff's process server, Downs, alleges parannal service was
attempted on only two occasions, prior to the date of the alleged affixing, both attempts were on
weekdays at times when it could reas0ñably be expected that Moran was in transit to or from her
diligence"
place of employment and, as such, is insufficient as a matter of law, to
satisfy the "due
requirement of CPLR §308(4). See also, Qgcnan v. Cohen, 209 A.D.2d 377, 378, 618 N.Y.S.2d
100, 100 (2d Dept., 1994) [three personal service attempts on three separate weekdays did not
diligence"
meet the "due standard of CPLR §3.0_8(4)]; Magalios v. Bentantin, 160 A.D.2d 773,
554 N.Y.S.2d 61 (2d Dept., 1990) [three attempts on three separate weekdays insufficient to
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meet due diligence standard]; McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759, 760
(2d Dept., 2008) [three attempts on three separate weekdays considered insufficient to show due
diligence]
28. In the case at bar, the process server's first purported attempt on Wednesday
January 13, 2016 at 6:40 p.m. was clearly at time when a working person would reasonably be
expected to be either at work or in transit from work. In County of Nassau v. Long, 35 A.D.3d
787, 787-788, 826 N.Y.S.2d 739, 739-740 (2d Dept., 2006) the Appellate Division, Second
Department, specifically held attempted service at 7:00 p.m. and 7:44 p.m. on weekdays are
times when it reasonably could have been expected that defendant is either working or in transit
to or from work.
29. Likewise, the purported attempt on Thursday January 14, 2016 at 10:17 a.m. is
clearly when a working person would reasonably be expected to be at work. See, New York Inst.
of Tech. v. Allocca, 15 Misc. 3d 1116(A), 1116A, 839 N.Y.S.2d 434, 434, (N.Y. Dist. Ct. 2007)
[weekday at 7:04 a.m. is "during normal business hours or when it could reasonably have been
expected that (defendant) was in transit to or from work"]; U.S. Bank N.A. v Agbodjan, 27 Misc.
3d 1221(A), 1221A, 910 N.Y.S.2d 766, 766 (N.Y. Sup. Ct. 2010) [weekday at 7:05 a.m. is
"during normal business hours or when it could reasonably have been expected that (defendant)
was in transit to or from work"]; Novastar Mtge. Inc. v Sachse, 2009 N.Y. Misc. LEXIS 3854,
10, 2009 NY Slip Op 31616(U), 4 (N.Y. Sup. Ct. July 14, 2009)[weekday at 7:06 a.m. is "during
normal business hours or when it could reasonably have been expected that (defendant) was in
transit to or from work"]
30. Further, after having failed to find Moran at her residence, itwould have been
reasonable for Plaintiff's process server, Downs, to assume that she would return to the residence
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after the usual working hours of the day and his failure to attempt service at such a later time or
in the early morning impels the conclusion that he failed to exercise due diligence as required by
CPLR §308(4). See, Barnes v. New York, 70 A.D.2d 580, 580, 416 N.Y.S.2d 52, 54 (2d Dept.,
1979) aff'd 51 N.Y.2d 906, 415 N.E.2d 979, 434 N.Y.S.2d 991 (N.Y., 1980) [processes server
should have known defendants were working people and attempted service before or after
working hours]; Carfora v. Pesiri, 89 A.D.2d 237, 239, 455 N.Y.S.2d 94, 95 (2d Dept., 1982)
[after speaking with a young girl who informed the process server that the adult person for whom
the summons and complaint were intended would return to the residence after the usual working
hours of the day, ordinary diligence demanded that a further attempt at service of process be
made at such later time or in the early morning hours]; Reed v. Domenech, 90 A.D.2d 844, 845,
456 N.Y.S.2d 90, 91 (2d Dept., 1982) [process server's neglect to attempt service at later time
impels the conclusion that he failed to exercise due diligence, service defective as a matter of
law]
diligence"
31. Further, the "due component of CPLR §308(4) will not be satisfied in
the case of an affixing at a defendant's dwelling place, regardless of how many attempts are
made to serve a person of suitable age and discretion at that location, unless the plaintiff also
made genuine inquiries as to the defendant's work habits, whereabouts and place of employment.
See, Barnes v. New York, supra, at 580 [inquiry as to whereabouts without inquiry to
"actual place of business", insufficient to satisfy due diligence]; Serraro v Staropoli, 94 A.D.3d
1083, 1085, 943 N.Y.S.2d 201, 203 (2d Dept., 2012) [specifically finding to establish due
diligence inquiry must be made to determine both the defendant's whereabouts and place of
employment]; Walker v. Manning, 209 A.D.2d 691, 692, 619 N.Y.S.2d 137, 138 (2d Dept.,
habits."
1994) ["...the process server made no attempt to ascertain Manning's working (service
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defective as a matter of law)]; Fattarusso v. Levco American Improv. Corp., 144 A.D.2d 626,
626, 535 N.Y.S.2d 62, 63 (2d Dept., 1988) ["There is no indication that the process server made
habits."
inquiry of neighbors as to the defendant Lavender's whereabouts or working (service
defective as a matter of law)]
Downs'
32. Here again, affidavit is lacking sufficient facts to demonstrate he made
the required inquiries concerning Moran's whereabouts, working habits and place of
employment. Instead, Downs merely ambiguously alleges "Confirmed with neighbor at @ 3
Sixth Avenue, Farmingdale New York 11735". (See, Exhibit "3")
33. Down's affidavit fails to demonstrate any inquiry was made to determine Moran's
whereabouts, working habits and/or place of employment. See, Serraro v Staropoli, supra, at
1085 ["...it must be shown that the process server made genuine inquiries about the defendant's
whereabouts and place of employment"]; McSorley v. Spear,supra, at 64 [failure to inquire as to
defendant's whereabouts is a lack of due diligence]; Estate of Waterman v. Jones, supra, at 67
[inquiry must be made about the defendant's whereabouts]
neighbor"
34. Further, it is impossible to ascertain what was "confirmed with and
Downs'
affidavit provides no indication whatsoever that he inquired of said neighbor as to
Moran's whereabouts, working habits and place of employment.
35. Morover, the affidavit of Joan Thorman, (Moran's mother) the neighbor residing
at 3 Sixth Avenue, Farmingdale New York 11735, swears that no one every came to her door
and asked where her daughter Kathleen worked or Kathleen's usually working hours. (See,
Exhibit "4")
36. In WU/LH 36 Midland, LLC v Levinson, 25 Misc. 3d 1144, 1146, 888 N.Y.S.2d
349, 351, (N.Y. Sup. Ct. 2009) Justice Daniel Palmieri held: "A mere showing of several
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attempts at service and talking to a neighbor, such as in this case, is not necessarily enough. Due
frequency."
diligence has been said to refer to the quality of the effort made not the quantity or
37. Thus, attempting to serve Moran at her residence without showing that there were
genuine inquiries about Moran's whereabouts, working habits and place of employment is fatal
to a f·mding of due diligence as required by CPLR §308(4).See, McSorley v. Spear, supra, at 654
["The process server failed to make "genuine inquiries about the defendant's whereabouts and
place of employment"]; Estate of Waterman v. Jones, supra, 66, ["For the purpose of satisfying
diligence'
the 'due requirement of CPLR §308(4), itmust be shown that the process server made
genuine inquiries about the defendant's whereabouts and place of employment..."]; Cadlerock
Joint Venture, L.P. v Kierstedt, 119 A.D.3d 627, 629, 990 N.Y.S.2d 522, 524-525 (2d Dept.,
2014) ["For the purpose of satisfying the due diligence requirement of CPLR 308(4), itmust be
shown that the process server made genuine inquiries about the defendant's whereabouts a_nd
place of employment"(emphasis added)]
38. The Appellate Division, Second Department in Leviton v. Unger, 56 A.D.3d 731,
732, 868 N.Y.S.2d 126, 127 (2d Dept., 2008) held: "...the process server's statement as to any
attempts he made to ascertain the place of employment of Unger were, at best, conclusory and
made."
ambiguous, and insufficient to show that the necessary inquiry was
39. While a process server's affidavit of service ordinarily constitutes prima facie
evidence of proper service, only an affidavit of service which on its face depicts appropriate
service constitutes prima facie evidence of proper service. See, New Century Fin. Servs., Inc. v.
1"
Baines, 12 Misc.3d 1182[A], 824 N.Y.S.2d 764 (App Term Dept., 2006).
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40. Accordingly, the affidavit of the process server must be sufficient in the firstplace
to enable the court "to make a determination that his efforts did constitute the requisite 'due
diligence'."
Quoting, Jones v. King, 24 A.D.2d 430, 260 N.Y.S.2d 666 (1st Dept., 1965)
41. The Appellate Division, Second Department in Kurmelis v. Gonzalez, 71 A.D.2d
997, 420 N.Y.S.2d 288, 289 (2d Dept., 1979) held an affidavit which omits any recitation of
diligence"
facts pertaining to satisfaction of the "due requirement precludes any summary
manner"
determination as to whether the attempted service was made "in an authorized so as to
confer jurisdiction upon the court.
42. Here, even if Plaintiff's process server Down's affidavit is consider as true, it
simply does not demonstrate an overall scheme of due diligence. By only going to the residence
on two days during normal working hours, prior to the date of the alleged affixing, also a
weekday during normal working hours, without any genuine inquiries about Moran's
whereabouts and place of employment is nothing more than a mere gesture to comply with the
due diligence component of CPLR §308(4).
43. Down's alleged attempts at service pursuant CPLR §308(1) or (2) here are
perfunctory, rather than diligent.
44. It is respectfully submitted, Plaintiff's process server's purported attempts to
serve Moran do not demonstrate the requisite level of effort because the three occasions on
which he allegedly attempted service do not reflect days and times sufficiently varied to insure
that Moran would reasonably be expected to be present. See, Marballie v. Lefrak, 201 A.D.2d
707, 708, 608 N.Y.S.2d 295, 296 (2d Dept., 1994) [attempts at different times and on different
days including early morning, evening, and a Saturday, and the inquiries of the defendant's
neighbor, were sufficient to constitute due diligence]
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45. It is respectfully submitted that if the Court is unable to determine that service
was improper as a matter law from the papers submitted, the matter should be set down for a
traverse hearing to determine if service was proper. See, Leviton v. Unger, supra, at 732 [no
hearing required, service defective as a matter of law]
46. While a process server's affidavit of service ordinarily constitutes prima facie
evidence of proper service, when the affidavit of service is rebutted, the plaintiff must establish
jurisdiction by a preponderance of the evidence at a hearing. See, Dime Say. Bank v. Steinman,
206 A.D.2d 404. 405, 613 N.Y.S.2d 945, 946 (2d Dept., 1994) [where there is a sworn denial of
receipt, the affidavit of service is not conclusive and a hearing must be held to determine if
service was proper] "The burden of proving jurisdiction is upon the party asserting it and when
evidence"
challenged that party must sustain that burden by preponderating Quoting, OCI Mortg.
Corp. v. Omar. 232 A.D.2d 462, 463, 648 N.Y.S.2d 175, 176 (2d Dept., 1996); Wells Fargo
Bank. NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254, 255 (2d Dept., 2009); Bankers
Trust Co. of Cal.. N.A. v. Tsoukas, 303 A.D.2d 343, 343-344, 756 N.Y.S.2d 92, 94 (2d Dept.,
2003)
47. Here, in addition to Moran's sworn statement, James Moran provides his sworn
statement that the Notice to Redeem was never affixed to the door of 2 Sixth Avenue,
Farmingdale, New York 11735 (See, Exhibit "5") sufficiently refuting the process server's
assertion that the Notice to Redeem was affixed to the door on January 15, 2016 and, as such, at
a minimum requires a hearing. See, Federal Home Loan Mortg. Corp. v. MacPherson, 277
A.D.2d 418, 418, 717 N.Y.S.2d 234, 235 (2d Dept., 2000) [A hearing is necessary to resolve this
issue of fact]; Norwest Bank Minn. N.A. v. Galasso, 275 A.D.2d 400, 400-401, 712 N.Y.S.2d
878 (2d Dept., 2000) ["The appellant's sworn statement that no summons and complaint
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appeared on his door on May 14, 1999, sufficiently refuted the process server's affidavit stating
that the service was properly accomplished pursuant to CPLR §308(4). Accordingly, a hearing
should have been held"]
48. It is well settled, when confronted with conflicting affidavits the Court is requi ed
to order a traverse hearing. See generally, DeStaso v. Bottiglieri, 52 A.D.3d 453, 454, 861
N.Y.S.2d 676, 678 (2d Dept., 2008) ["In view of the
conflicting affidavits...the Supreme Court
should have conducted a hearing..."]; Bank of N.Y. v. Melito-Bendernage! Assocs., 274 A.D.2d
531, 531, 712 N.Y.S.2d 124, 125 (2d Dept., 2000) ["In view of the conflicting affidavits, a
is to determine whether the appellant was served with the summons and
hearing necessary
complaint."]; Poet v. Koleñda, 142 A.D.2d 633, 530 N.Y.S.2d 589, (2d Dept., 1988) [hearing
required to resolve factual dispute raised by conflicting affidavits as to service of process]
49. Here Plaintiff's process server's affidavit is in conflict with the affidavit of James
Moran and Moran's and, as such, at a miñiream a hearing is required to resolve this disputed
issue.
50. While this Court's by Decision and Order dated October 22, 2018 held the
"defective service, or lack of service, of the notice to redeem is not a jurisdictional defect nor is it
complaint"
fatal to the the Court did note "the questionable nature of the due diligence
Moran..."
undertaken by the process server with respect to Defendant (See, Exhibit "7")
51. It is
respectfully submitted, the affidavit of service is insufficient on its face to
demonstrate Downs exercised due diligence and therefore Plaintiff failed to serve Moran with
the Notice of Redemption in compliance with Nassau Admiñistrative Code section 5-
County
51.0(c).
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52. As readily admitted by Plaintiff's counsel during oral argument, Plaintiff is not
entitled to attorney's fees.
"The significance of letting them know of the date before for a foreclosure action
is because a foreclosure action triggers fees, attorney's fees, filing fees, and so
that's why the statute provides under 5.51 of the code that in this scenario, like
my client, where the tax lienholder has decided not to simply take a tax lien deed
and deprive you of your rights before foreclosure but says, 'I'm going to proceed
owe.'
to foreclosure if you don't pay me the debt you Under 5.51, if either
counsel could prove today my client failed to give them the notice to redeem, they
would be correct. We would not be entitled to those fees we have now
today."
accumulated for bringing this action and bringing everyone to court
"6"
(See, Exhibit page 19 lines 16-25 and page 20 lines 1-4)
53. Plaintiff's
Preview
FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 SUPREME COURT OF THE STATE OF NEW YORK Return Date: 3/4/2019 COUNTY OF NASSAU Hon. Julianne T. Capetola ------------------------------------ -- --- -¬x Index No. 608673/2017 DBW TL HOLDCO 2014, LLC, Plaintiff, AFFIRMATION IN OPPOSITION TO PLAINTIFF'S MOTION -against- ROBERT P. KIRK, JR. a/k/a ROBERT KIRK, JR. a/k/a ROBERT P. KIRK, KATHLEEN M. KIRK, a/k/a KATHLEEN KIRK, MIDLAND FUNDING LLC, LI ANESTHESIOLOGIST PLLC, PEOPLE OF THE STATE OF NEW YORK, TARGET NATIONAL BANK, COUNTY OF NASSAU, and KIERAN KIRK S/H/A JOHN DOE NO. 1, Defendants. -------- ---- ----------x I,John R. Lewis, Jr., Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms under the penalties of perjury as follows: 1. I am a member of John R. Lewis, Jr., Esq., P.C, attorneys for the defendant ("Defendant" Kathleen M. Moran s/h/a KATHLEEN M. KIRK a/k/a KATHLEEN KIRK and/or "Moran") and, as such, I am fully familiar with the facts and circumstances of this action. 2. This affirmation is respectfully submitted in opposition to Plaintiff, DBW TL HOLDCO 2014, LLC's, (hereinafter "Plaintiff") motion seeking entry of a Judgment of Foreclosure and Sale with an award of legal fees, costs and disbursements. Page 1 of 15 1 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 BACKGROUND/PROCEDURAL HISTORY 3. Plaintiff commenced this action on August 24, 2017 seeking to foreclose on a Tax Lien with regards to real property commonly known as 2 Sixth Avenue, Farmingdale, New York 11735 (the subject "Property") by E-filing a Summons in Tax Lien Foreclosure and Complaint. (See, Exhibit "1") 4. On October 4, 2017 defendant ROBERT P. KIRK, JR. a/k/a ROBERT KIRK, JR. a/k/a ROBERT P. KIRK, ("Defendant Kirk") submitted his answer to Plaintiff's Complaint. (See, NYSCEF Doc #13) 5. On November 6, 2017 Moran filed a pre-answer motion seeking dismissal for Plaintiff's failure to acquire personal jurisdiction over her; to which Plaintiff submitted opposition and Moran replied thereto. (See, NYSCEF Doc #14) 6. On December 21, 2017 Plaintiff filed a motion seeking summary judgment in its favor and solely against Defendant Kirk. (See, NYSCEF Doc #42) 7. By Decision and Order on Motion, dated December 20, 2017 and entered December 22, 2017, this Court ordered a traverse hearing to determine if Moran was properly served (See, NYSCEF Doc #56) and on January 15, 2018 Plaintiff filed a motion seeking to extend itstime to serve Moran. (See, NYSCEF Doc #60) 8. On January 24, 2018 the parties appeared before the Honorable Daniel Palmieri ready to go forward with the traverse hearing but reached an agreement. Pursuant to the stipulation, spread upon the record, Moran agreed to personal jurisdiction of the Court with Plaintiff agreeing to give Moran until February 21, 2018 to file an answer. (See, NYSCEF Doc #74) Page 2 of 15 2 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 9. On February 6, 2018 Plaintiff withdrew itsmotion seeking an extension of time to serve Moran. (See, NYSCEF Doc #73) 10. On February 21, 2018 Moran filed her Verified Answer to Plaintiff's Complaint. (See, Exhibit "2") 11. On March 29, 2018 Defendant Kirk filed opposition to Plaintiff's motion seeking summary judgment solely against him (See, NYSCEF Doc #80) to which Plaintiff replied on April 17, 2018. (See, NYSCEF Does #82-89) 12. On April 24, 2018 Plaintiff's motion with regards to Defeñdâñt Kirk was granted by Order of this Court. (See, NYSCEF Doc #111) 13. On May 24, 2018 Defendant Kirk filed a motion seeking leave to renew/reargue this Court's decision dated April 24, 2018. (See, NYSCEF Does #114-122) 14. On June 14, 2018 Moran's cross-moved seeking summary judgment in her favor and/or for the dismissal of this action for Plaintiff's failure to comply with a condition precedent. (See, NYSCEF Does #125-136) 15. After hearing oral argument, this Court by Decision and Order dated October 22, 2018 granted that branch of Defendant Kirk's motion seeking leave to renew and upon renewal adhered to itsprior determination granting Plaintiff summary judgment as to him. This Court also determined that "...defective service, or lack of service, of the notice to redeem is not a complaint" jurisdictional defect nor is it fatal to the and denied Moran's cross-motion and granted Plaintiff's motion in its entirety. 16. Plaintiff's instant motion now seeks an Order confirming the Referee's Report, entry of a Judgment of Foreclosure and Sale with an award of legal fees, costs and disbursements. Page 3 of 15 3 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 17. Moran opposes that branch of Plaintiff's motion seeking an award of legal fees against Moran insofar as Plaintiff failed to serve Moran with a Notice to Redeem "...by personal York" service, as defined in the Civil Practice Law and Rules of the State of New prior to commencing this action as required by Nassau County Administrative Code section 5-51.0(c) to be entitled to such. ARGUMENT 18. Nassau County Administrative Code section 5-51.0(c) provides in relevant part; "A holder of a tax lien shall serve notice on the owner in fee as appearing of record for said premises classified as class one or of a residential condominium classified as class two by personal service, as defined in the Civil Practice Law and Rules of the State of New York when said owner is a resident of Nassau County;..." (emphasis added) 19. In the case at bar, Moran is a resident of Nassau County residing at the subject Property, 2 Sixth Avenue, Farmingdale, New York 11735, and therefore, prior to the commencement of this action, Plaintiff was required to serve Moran with the Notice to Redeem by personal service as defined in the Civil Practice Law and Rules and Moran properly asserted Plaintiff's failure to do so as an affirmative defense in her answer. (See, Moran's Affidavit) person" 20. CPLR §308 titled "Personal service upon a natural explains how service" "personal upon a natural person is made. That section provides for five methods of service" - "personal "personal delivery", "substituted service", "service on a designated agent", mail" "affix and and the varied forms of service available under CPLR §308(5). See generally, Kovachman v. Paige Mgt. & Consulting, LLC, 121 A.D.3d 951, 952, 995 N.Y.S.2d 115, 116, (2d Dept., 2014) ["...the other means set forth in CPLR §308 constitute personal service..."] Page 4 of 15 4 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 21. In the case at bar, Plaintiff alleges, by way of the affidavit of its process server John Downs, ("Downs") service of the Notice to Redeem upon Moran was accomplished mail." pursuant to CPLR §308(4), commonly referred to as "nail and (See, Exhibit "3") 22. Pursuant to CPLR §308(4) service may be made "by affixing the summons to the abode" door of either the actual place of business, dwelling place or usual place of only where the alternate methods of personal service provided for in CPLR §308(1) or (2) "cannot be made diligence" with due [CPLR §308(4)]. 23. The due diligence requirement of CPLR § 308(4) must be strictlyobserved; given the reduced likelihood that papers served pursuant to that section will be received. See, O'Connell v. Post, 27 A.D.3d 630, 631, 811 N.Y.S.2d 441, 442 (2d Dept., 2006) [requiring strict compliance with the due diligence requirement of CPLR §308(4)]; Scott v. Knoblock, 204 A.D.2d 299, 611 N.Y.S.2d 265 (2d Dept., 1994) [noting the due diligence requirement of CPLR §308(4) is to be strictly observed]; Kaszovitz v. Weiszman, 110 A.D.2d 117, 120, 493 N.Y.S.2d 335 (2d Dept., 1985) [same] diligence" 24. Although "due is not defined in the statutory framework, the term has been interpreted and applied on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality. See, Estate of Waterman v. Jones, 46 A.D.3d 63, 66, 843 N.Y.S.2d 462, 464 (2d Dept., 2007) [due diligence requirement refers to the quality of the efforts]; Barnes v. New York, 70 A.D.2d 580, 416 N.Y.S.2d 52 (2d Dept., 1979) affd 51 N.Y.2d 906, 415 N.E.2d 979, 434 N.Y.S.2d 991 (N.Y., 1980) 25. In the case at bar, Plaintiff has not shown that the requirements of CPLR §308(4) have been satisfied. Down's affidavit alleges personal service was attempted on only two dates, both weekdays, specifically; Wednesday January 13, 2016 at 6:40 p.m. and Thursday January 14, Page 5 of 15 5 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 2016 at 10:17 a.m., prior to the alleged affixing on January 15, 2016 at 8:33 a.m., also a weekday. (See, Exhibit "3") 26. The Appellate Division, Second Department has held that two prior attempts, before the affixing, are insufficient to establish due diligence. See, County of Nassau v. Yohannan, 34 A.D.3d 620, 621, 824 N.Y.S.2d 431, 432 (2d Dept., 2006) ["Before affixing a defendants' copy of the summons and complaiñt on the front door of the residence, the plaintiff's process server made two attempts at service, both on weekdays, during hours when it only reasonably could have been expected that the defeñdâñts were either working or in transit to or work" from (insufficient to establish due diligeñce)]; County of Nassau v. Letog.k_y, 34 A.D.3d 414, 415, 824 N.Y.S.2d 153, 154 (2d Dept., 2006) ["Two of the three attempts at service were made on weekdays hours when it reasonably could have been expected that Letosky was during work" either or in transit to (insufficient to establish due diligence)]; McGreevy v. working Simon, 220 A.D.2d 713, 714, 633 N.Y.S.2d 177, 178 (2d Dept., 1995) [two attempts at such service were insufficient to warrant resort to affix and mail service under CPLR 6308(4)l 27. Here, like in County of Nassaa v. Letosky, supra, and County of Nassaü v. Bhannan, supra, the affidavit of Plaintiff's process server, Downs, alleges parannal service was attempted on only two occasions, prior to the date of the alleged affixing, both attempts were on weekdays at times when it could reas0ñably be expected that Moran was in transit to or from her diligence" place of employment and, as such, is insufficient as a matter of law, to satisfy the "due requirement of CPLR §308(4). See also, Qgcnan v. Cohen, 209 A.D.2d 377, 378, 618 N.Y.S.2d 100, 100 (2d Dept., 1994) [three personal service attempts on three separate weekdays did not diligence" meet the "due standard of CPLR §3.0_8(4)]; Magalios v. Bentantin, 160 A.D.2d 773, 554 N.Y.S.2d 61 (2d Dept., 1990) [three attempts on three separate weekdays insufficient to Page 6 of 15 6 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 meet due diligence standard]; McSorley v. Spear, 50 A.D.3d 652, 653, 854 N.Y.S.2d 759, 760 (2d Dept., 2008) [three attempts on three separate weekdays considered insufficient to show due diligence] 28. In the case at bar, the process server's first purported attempt on Wednesday January 13, 2016 at 6:40 p.m. was clearly at time when a working person would reasonably be expected to be either at work or in transit from work. In County of Nassau v. Long, 35 A.D.3d 787, 787-788, 826 N.Y.S.2d 739, 739-740 (2d Dept., 2006) the Appellate Division, Second Department, specifically held attempted service at 7:00 p.m. and 7:44 p.m. on weekdays are times when it reasonably could have been expected that defendant is either working or in transit to or from work. 29. Likewise, the purported attempt on Thursday January 14, 2016 at 10:17 a.m. is clearly when a working person would reasonably be expected to be at work. See, New York Inst. of Tech. v. Allocca, 15 Misc. 3d 1116(A), 1116A, 839 N.Y.S.2d 434, 434, (N.Y. Dist. Ct. 2007) [weekday at 7:04 a.m. is "during normal business hours or when it could reasonably have been expected that (defendant) was in transit to or from work"]; U.S. Bank N.A. v Agbodjan, 27 Misc. 3d 1221(A), 1221A, 910 N.Y.S.2d 766, 766 (N.Y. Sup. Ct. 2010) [weekday at 7:05 a.m. is "during normal business hours or when it could reasonably have been expected that (defendant) was in transit to or from work"]; Novastar Mtge. Inc. v Sachse, 2009 N.Y. Misc. LEXIS 3854, 10, 2009 NY Slip Op 31616(U), 4 (N.Y. Sup. Ct. July 14, 2009)[weekday at 7:06 a.m. is "during normal business hours or when it could reasonably have been expected that (defendant) was in transit to or from work"] 30. Further, after having failed to find Moran at her residence, itwould have been reasonable for Plaintiff's process server, Downs, to assume that she would return to the residence Page 7 of 15 7 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 after the usual working hours of the day and his failure to attempt service at such a later time or in the early morning impels the conclusion that he failed to exercise due diligence as required by CPLR §308(4). See, Barnes v. New York, 70 A.D.2d 580, 580, 416 N.Y.S.2d 52, 54 (2d Dept., 1979) aff'd 51 N.Y.2d 906, 415 N.E.2d 979, 434 N.Y.S.2d 991 (N.Y., 1980) [processes server should have known defendants were working people and attempted service before or after working hours]; Carfora v. Pesiri, 89 A.D.2d 237, 239, 455 N.Y.S.2d 94, 95 (2d Dept., 1982) [after speaking with a young girl who informed the process server that the adult person for whom the summons and complaint were intended would return to the residence after the usual working hours of the day, ordinary diligence demanded that a further attempt at service of process be made at such later time or in the early morning hours]; Reed v. Domenech, 90 A.D.2d 844, 845, 456 N.Y.S.2d 90, 91 (2d Dept., 1982) [process server's neglect to attempt service at later time impels the conclusion that he failed to exercise due diligence, service defective as a matter of law] diligence" 31. Further, the "due component of CPLR §308(4) will not be satisfied in the case of an affixing at a defendant's dwelling place, regardless of how many attempts are made to serve a person of suitable age and discretion at that location, unless the plaintiff also made genuine inquiries as to the defendant's work habits, whereabouts and place of employment. See, Barnes v. New York, supra, at 580 [inquiry as to whereabouts without inquiry to "actual place of business", insufficient to satisfy due diligence]; Serraro v Staropoli, 94 A.D.3d 1083, 1085, 943 N.Y.S.2d 201, 203 (2d Dept., 2012) [specifically finding to establish due diligence inquiry must be made to determine both the defendant's whereabouts and place of employment]; Walker v. Manning, 209 A.D.2d 691, 692, 619 N.Y.S.2d 137, 138 (2d Dept., habits." 1994) ["...the process server made no attempt to ascertain Manning's working (service Page 8 of 15 8 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 defective as a matter of law)]; Fattarusso v. Levco American Improv. Corp., 144 A.D.2d 626, 626, 535 N.Y.S.2d 62, 63 (2d Dept., 1988) ["There is no indication that the process server made habits." inquiry of neighbors as to the defendant Lavender's whereabouts or working (service defective as a matter of law)] Downs' 32. Here again, affidavit is lacking sufficient facts to demonstrate he made the required inquiries concerning Moran's whereabouts, working habits and place of employment. Instead, Downs merely ambiguously alleges "Confirmed with neighbor at @ 3 Sixth Avenue, Farmingdale New York 11735". (See, Exhibit "3") 33. Down's affidavit fails to demonstrate any inquiry was made to determine Moran's whereabouts, working habits and/or place of employment. See, Serraro v Staropoli, supra, at 1085 ["...it must be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment"]; McSorley v. Spear,supra, at 64 [failure to inquire as to defendant's whereabouts is a lack of due diligence]; Estate of Waterman v. Jones, supra, at 67 [inquiry must be made about the defendant's whereabouts] neighbor" 34. Further, it is impossible to ascertain what was "confirmed with and Downs' affidavit provides no indication whatsoever that he inquired of said neighbor as to Moran's whereabouts, working habits and place of employment. 35. Morover, the affidavit of Joan Thorman, (Moran's mother) the neighbor residing at 3 Sixth Avenue, Farmingdale New York 11735, swears that no one every came to her door and asked where her daughter Kathleen worked or Kathleen's usually working hours. (See, Exhibit "4") 36. In WU/LH 36 Midland, LLC v Levinson, 25 Misc. 3d 1144, 1146, 888 N.Y.S.2d 349, 351, (N.Y. Sup. Ct. 2009) Justice Daniel Palmieri held: "A mere showing of several Page 9 of 15 9 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 attempts at service and talking to a neighbor, such as in this case, is not necessarily enough. Due frequency." diligence has been said to refer to the quality of the effort made not the quantity or 37. Thus, attempting to serve Moran at her residence without showing that there were genuine inquiries about Moran's whereabouts, working habits and place of employment is fatal to a f·mding of due diligence as required by CPLR §308(4).See, McSorley v. Spear, supra, at 654 ["The process server failed to make "genuine inquiries about the defendant's whereabouts and place of employment"]; Estate of Waterman v. Jones, supra, 66, ["For the purpose of satisfying diligence' the 'due requirement of CPLR §308(4), itmust be shown that the process server made genuine inquiries about the defendant's whereabouts and place of employment..."]; Cadlerock Joint Venture, L.P. v Kierstedt, 119 A.D.3d 627, 629, 990 N.Y.S.2d 522, 524-525 (2d Dept., 2014) ["For the purpose of satisfying the due diligence requirement of CPLR 308(4), itmust be shown that the process server made genuine inquiries about the defendant's whereabouts a_nd place of employment"(emphasis added)] 38. The Appellate Division, Second Department in Leviton v. Unger, 56 A.D.3d 731, 732, 868 N.Y.S.2d 126, 127 (2d Dept., 2008) held: "...the process server's statement as to any attempts he made to ascertain the place of employment of Unger were, at best, conclusory and made." ambiguous, and insufficient to show that the necessary inquiry was 39. While a process server's affidavit of service ordinarily constitutes prima facie evidence of proper service, only an affidavit of service which on its face depicts appropriate service constitutes prima facie evidence of proper service. See, New Century Fin. Servs., Inc. v. 1" Baines, 12 Misc.3d 1182[A], 824 N.Y.S.2d 764 (App Term Dept., 2006). Page 10 of 15 10 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 40. Accordingly, the affidavit of the process server must be sufficient in the firstplace to enable the court "to make a determination that his efforts did constitute the requisite 'due diligence'." Quoting, Jones v. King, 24 A.D.2d 430, 260 N.Y.S.2d 666 (1st Dept., 1965) 41. The Appellate Division, Second Department in Kurmelis v. Gonzalez, 71 A.D.2d 997, 420 N.Y.S.2d 288, 289 (2d Dept., 1979) held an affidavit which omits any recitation of diligence" facts pertaining to satisfaction of the "due requirement precludes any summary manner" determination as to whether the attempted service was made "in an authorized so as to confer jurisdiction upon the court. 42. Here, even if Plaintiff's process server Down's affidavit is consider as true, it simply does not demonstrate an overall scheme of due diligence. By only going to the residence on two days during normal working hours, prior to the date of the alleged affixing, also a weekday during normal working hours, without any genuine inquiries about Moran's whereabouts and place of employment is nothing more than a mere gesture to comply with the due diligence component of CPLR §308(4). 43. Down's alleged attempts at service pursuant CPLR §308(1) or (2) here are perfunctory, rather than diligent. 44. It is respectfully submitted, Plaintiff's process server's purported attempts to serve Moran do not demonstrate the requisite level of effort because the three occasions on which he allegedly attempted service do not reflect days and times sufficiently varied to insure that Moran would reasonably be expected to be present. See, Marballie v. Lefrak, 201 A.D.2d 707, 708, 608 N.Y.S.2d 295, 296 (2d Dept., 1994) [attempts at different times and on different days including early morning, evening, and a Saturday, and the inquiries of the defendant's neighbor, were sufficient to constitute due diligence] Page 11 of 15 11 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 45. It is respectfully submitted that if the Court is unable to determine that service was improper as a matter law from the papers submitted, the matter should be set down for a traverse hearing to determine if service was proper. See, Leviton v. Unger, supra, at 732 [no hearing required, service defective as a matter of law] 46. While a process server's affidavit of service ordinarily constitutes prima facie evidence of proper service, when the affidavit of service is rebutted, the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing. See, Dime Say. Bank v. Steinman, 206 A.D.2d 404. 405, 613 N.Y.S.2d 945, 946 (2d Dept., 1994) [where there is a sworn denial of receipt, the affidavit of service is not conclusive and a hearing must be held to determine if service was proper] "The burden of proving jurisdiction is upon the party asserting it and when evidence" challenged that party must sustain that burden by preponderating Quoting, OCI Mortg. Corp. v. Omar. 232 A.D.2d 462, 463, 648 N.Y.S.2d 175, 176 (2d Dept., 1996); Wells Fargo Bank. NA v. Chaplin, 65 A.D.3d 588, 589, 884 N.Y.S.2d 254, 255 (2d Dept., 2009); Bankers Trust Co. of Cal.. N.A. v. Tsoukas, 303 A.D.2d 343, 343-344, 756 N.Y.S.2d 92, 94 (2d Dept., 2003) 47. Here, in addition to Moran's sworn statement, James Moran provides his sworn statement that the Notice to Redeem was never affixed to the door of 2 Sixth Avenue, Farmingdale, New York 11735 (See, Exhibit "5") sufficiently refuting the process server's assertion that the Notice to Redeem was affixed to the door on January 15, 2016 and, as such, at a minimum requires a hearing. See, Federal Home Loan Mortg. Corp. v. MacPherson, 277 A.D.2d 418, 418, 717 N.Y.S.2d 234, 235 (2d Dept., 2000) [A hearing is necessary to resolve this issue of fact]; Norwest Bank Minn. N.A. v. Galasso, 275 A.D.2d 400, 400-401, 712 N.Y.S.2d 878 (2d Dept., 2000) ["The appellant's sworn statement that no summons and complaint Page 12 of 15 12 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 appeared on his door on May 14, 1999, sufficiently refuted the process server's affidavit stating that the service was properly accomplished pursuant to CPLR §308(4). Accordingly, a hearing should have been held"] 48. It is well settled, when confronted with conflicting affidavits the Court is requi ed to order a traverse hearing. See generally, DeStaso v. Bottiglieri, 52 A.D.3d 453, 454, 861 N.Y.S.2d 676, 678 (2d Dept., 2008) ["In view of the conflicting affidavits...the Supreme Court should have conducted a hearing..."]; Bank of N.Y. v. Melito-Bendernage! Assocs., 274 A.D.2d 531, 531, 712 N.Y.S.2d 124, 125 (2d Dept., 2000) ["In view of the conflicting affidavits, a is to determine whether the appellant was served with the summons and hearing necessary complaint."]; Poet v. Koleñda, 142 A.D.2d 633, 530 N.Y.S.2d 589, (2d Dept., 1988) [hearing required to resolve factual dispute raised by conflicting affidavits as to service of process] 49. Here Plaintiff's process server's affidavit is in conflict with the affidavit of James Moran and Moran's and, as such, at a miñiream a hearing is required to resolve this disputed issue. 50. While this Court's by Decision and Order dated October 22, 2018 held the "defective service, or lack of service, of the notice to redeem is not a jurisdictional defect nor is it complaint" fatal to the the Court did note "the questionable nature of the due diligence Moran..." undertaken by the process server with respect to Defendant (See, Exhibit "7") 51. It is respectfully submitted, the affidavit of service is insufficient on its face to demonstrate Downs exercised due diligence and therefore Plaintiff failed to serve Moran with the Notice of Redemption in compliance with Nassau Admiñistrative Code section 5- County 51.0(c). Page 13 of 15 13 of 15 FILED: NASSAU COUNTY CLERK 02/25/2019 06:45 PM INDEX NO. 608673/2017 NYSCEF DOC. NO. 178 RECEIVED NYSCEF: 02/25/2019 52. As readily admitted by Plaintiff's counsel during oral argument, Plaintiff is not entitled to attorney's fees. "The significance of letting them know of the date before for a foreclosure action is because a foreclosure action triggers fees, attorney's fees, filing fees, and so that's why the statute provides under 5.51 of the code that in this scenario, like my client, where the tax lienholder has decided not to simply take a tax lien deed and deprive you of your rights before foreclosure but says, 'I'm going to proceed owe.' to foreclosure if you don't pay me the debt you Under 5.51, if either counsel could prove today my client failed to give them the notice to redeem, they would be correct. We would not be entitled to those fees we have now today." accumulated for bringing this action and bringing everyone to court "6" (See, Exhibit page 19 lines 16-25 and page 20 lines 1-4) 53. Plaintiff's