Jurisdiction

On mailing and service

Wilmington Sav. Fund Socy., FSB v Sheikh, 2020 NY Slip Op 02823 [2d Dept. 2020]

Here, in support of his cross motion, the defendant established that the plaintiff failed to properly serve its motion for summary judgment and for an order of reference because the plaintiff mailed the motion papers to an incorrect address for the defendant’s counsel, resulting in the defendant’s lack of notice of the motion. In opposition, the plaintiff merely speculated that the motion papers may have been forwarded to the defendant’s counsel by the U.S. Postal Service, or that counsel may have otherwise received notice of the motion. Given that defective service of the motion was established (see generally Matter of Community Hous. Improvement Program v Commissioner of Labor, 166 AD3d 1135, 1137; Jagmohan v City of New York, 14 AD3d 491, 492), the defendant was not obligated to demonstrate a reasonable excuse for the default or a potentially meritorious defense (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907). Moreover, the failure to give the defendant timely notice of the motion deprived the Supreme Court of jurisdiction to entertain the motion and rendered the resulting order entered October 3, 2016, void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965; Golden v Golden, 128 AD2d 672, 673).

Rodriguez v 60 Graham, LLC, 173 AD3d 1095 [2d Dept. 2020]

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d 816, 817 [2018] [internal quotation marks omitted]; see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820, 820 [2012]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763, 764 [2012]). “To be entitled to vacatur of a default judgment . . . a defendant must overcome the presumption raised by the process server’s affidavit of service” (Machovec v Svoboda, 120 AD3d 772, 773 [2014]). “A defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing; however, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the affidavit of service” (Wells Fargo Bank, N.A. v Leonardo, 167 AD3d at 817). The sworn denial of receipt of service must be a “detailed and specific contradiction” of the allegations in the process server’s affidavit (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 344 [2003]; see Scarano v Scarano, 63 AD3d 716 [2009]).

Here, City Signs relied on an affidavit of the individual allegedly served in support of its contention that there were discrepancies between her appearance and the description of her provided in the process server’s affidavit. However, the claimed discrepancies were minor and did not warrant a hearing on the issue of service (see US Bank N.A. v Cherubin, 141 AD3d 514, 515-516 [2016]; Citimortgage, Inc. v Baser, 137 AD3d 735, 736 [2016]; Indymac Fed. Bank, FSB v Hyman, 74 AD3d 751, 751 [2010]; Wells Fargo Bank, N.A. v McGloster, 48 AD3d 457 [2008]). Additionally, City Signs failed to substantiate the claimed discrepancies (see US Bank N.A. v Cherubin, 141 AD3d at 516; Indymac Fed. Bank, FSB v Hyman, 74 AD3d at 751).

Deutsche Bank Natl. Trust Co. v Dennis, 2020 NYSlipOp 02039 [2d Dept. 2020]

RPAPL 1304 provides that at least 90 days before a lender, an assignee, or a mortgage loan servicer commences an action to foreclose the mortgage on a home loan as defined in the statute, such lender, assignee, or mortgage loan servicer must give notice to the borrower. The statute provides the required content for the notice and provides that the notice must be sent by registered or certified mail and also by first-class mail to the last known address of the borrower (see RPAPL 1304 [2]). “Strict compliance with RPAPL 1304 notice to the borrower or borrowers is a condition precedent to the commencement of a foreclosure action” (Citibank, N.A. v Conti-Scheurer, 172 AD3d 17, 20 [2019]; see Citimortgage, Inc. v Banks, 155 AD3d 936, 936-937 [2017]; HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 825-826 [2017]), “and the plaintiff has the burden of establishing satisfaction of this condition” (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]). “By requiring the lender or mortgage loan servicer to send the RPAPL 1304 notice by registered or certified mail and also by first-class mail, the Legislature implicitly provided the means for the plaintiff to demonstrate its compliance with the statute, i.e., by proof of the requisite mailing, which can be established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure” (Citibank, N.A. v Conti-Scheurer, 172 AD3d at 20-21 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508-509 [2015]; Bank of Am., N.A. v Bittle, 168 AD3d 656, 658 [2019]; Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014, 1016 [2018]).

Here, the plaintiff failed to submit an affidavit of mailing or proof of mailing by the United States Postal Service evidencing that it properly mailed notice to the defendant pursuant to RPAPL 1304. Instead, the plaintiff relied on an affidavit of Rashad Blanchard, who was employed as a loan analyst by the parent company of the plaintiff’s loan servicer, and copies of the purported notices. The plaintiff submitted only one letter that purported to constitute the statutorily required 90-day notice of default, dated December 22, 2008. Although the letter contained the statement “sent via certified mail,” with a 20-digit number below it, no receipt or corresponding document issued by the United States Postal Service was submitted proving that the letter was actually sent by certified mail more than 90 days prior to commencement of the action. The plaintiff also failed to submit any documentary evidence that notice was sent by first-class mail. Further, Blanchard did not aver that the notice was sent in the manner required pursuant to RPAPL 1304, i.e., by certified mail and first-class mail. Moreover, since he did not aver that he personally mailed the notice, or that he was familiar with the mailing practices and procedures of American Home Mortgage Servicing, Inc., the entity that purportedly sent the notices, he did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed (see U.S. Bank N.A. v Offley, 170 AD3d 1240, 1242 [2019]; U.S. Bank N.A. v Henderson, 163 AD3d 601, 603 [2018]; Bank of Am., N.A. v Wheatley, 158 AD3d 736, 738 [2018]).

The bold is mine.

A judgment without jurisdiction is void

Board of Mgrs. of 50 W. 127th St. Condominium v Kidd, 2019 NY Slip Op 00973 [1st Dept. 2019]

Defendant did not waive the defense of lack of jurisdiction. Before her incoming counsel filed a notice of appearance without mentioning the defense, she had already presented an order to show cause seeking to vacate the judgment based on lack of personal jurisdiction, and she moved to vacate based on improper service shortly after new counsel appeared. In contrast, in the cases relied on by plaintiff and City West, the defendant’s counsel filed a notice of appearance without preserving any objection to jurisdiction after the time to move or answer had elapsed, and did not move to vacate for years afterwards, indicating an intentional abandonment of the defense (see e.g. Wilmington Sav. Fund Socy., FSB v Zimmerman, 157 AD3d 846, 846-847 [2d Dept 2018], lv denied 31 NY3d 1135 [2018]; Capital One Bank, N.A. v Farraco, 149 AD3d 590, 590 [1st Dept 2017]). Defendant’s communications with plaintiff’s managing agent in which she arranged to pay her arrears, cannot be construed as an appearance in the action, much less a waiver of her defense of lack of jurisdiction.
Because the judgment was entered without jurisdiction over defendant, City West is not entitled to restitution as an alternative remedy to vacatur of the foreclosure sale, as “[a] judgment rendered without jurisdiction is void” and “a deed [] issued in execution upon such a void judgment . . . is similarly void” (U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872 [2d Dept 2011]).

Service requirements in OSC are jurisdictional in nature

Boucan NYC Café, LLC v 467 Rogers, LLC, 2019 NY Slip Op 00416 [2d Dept. 2019]

We agree with the defendant’s contention that the service requirements set forth in the order to show cause dated August 9, 2017, were jurisdictional in nature. The plaintiff’s undisputed failure to comply with these requirements by serving the order to show cause pursuant to CPLR 308(4), instead of CPLR 311-a, deprived the Supreme Court of jurisdiction to entertain the plaintiff’s order to show cause in the order dated August 16, 2017 (see Gonzalez v Haniff, 144 AD3d 1087). Contrary to the plaintiff’s contention, the defendant may challenge the validity of the order dated August 16, 2017, on the ground that the court was without jurisdiction to enter the order (see Board of Directors of Windsor Owners Corp. v Platt, 148 AD3d 645). Accordingly, the plaintiff’s motion to hold the defendant in contempt for failure to comply with the order dated August 16, 2017, should have been denied.

“A judgment rendered without jurisdiction is void” but…

Bank United, FSB v Verbitsky, 2018 NY Slip Op 08623 [2d Dept. 2018]

As a threshold matter, the defendant correctly contends that the Supreme Court should have granted those branches of her motion which were to vacate and set aside the foreclosure sale and, in effect, to vacate the judgment of foreclosure and sale and the order of reference. “[A] court is without power to render a judgment against a party over whom the court lacks jurisdiction. A judgment rendered without jurisdiction is void” (Berlin v Sordillo, 179 AD2d 717, 719; see Diaz v Perez, 113 AD3d 421, 421; U.S. Bank, N.A. v Bernhardt, 88 AD3d 871, 872). Accordingly, upon, in effect, confirming the referee’s finding that the defendant was not properly served, the court was required to vacate and set aside the foreclosure sale, as well as the judgment of foreclosure and sale and order of reference upon which it was based (see Prudence v Wright, 94 AD3d 1073, 1074; U.S. Bank, N.A. v Bernhardt, 88 AD3d at 872).

However, in light of the plaintiff’s timely cross motion pursuant to CPLR 306-b (see US Bank N.A. v Saintus, 153 AD3d 1380, 1382), the Supreme Court could consider whether to extend the time for service of process, rather than granting the branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

Jurisdiction

CPLR § 302

Paolucci v Kamas, 2011 NY Slip Op 03823 (App. Div., 2nd 2011)

Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

Quasi In Rem Jurisdiction

Quasi In Rem Jurisdiction

Cargill Fin. Servs. Intl., Inc. v Bank Fin. & Credit Ltd., 2009 NY Slip Op 07688 (App. Div., 1st, 2009)

While plaintiff's evidence established a basis for quasi in rem
jurisdiction, in that defendant, a Ukranian bank, utilized its New York
correspondent accounts to receive funds and make interest payments
pursuant to the terms of the parties' loan agreements and associated
letters of credit (see generally Banco Ambrosiano v Artoc Bank & Trust,
62 NY2d 65 [1984]), plaintiff failed in its burden to show the extent,
if any, that defendant had an attachable ownership interest in the
subject correspondent accounts (see e.g. Sigmoil Resources v Pan Ocean Oil Corp. (Nigeria), 234 AD2d 103 [1996], lv dismissed 89 NY2d 1030 [1997]). As [*2]such, the court properly exercised its discretion to deny plaintiff's attachment application (see J.V.W. Inv. Ltd. v Kelleher, 41 AD3d 233 [2007]).

The bold is mine.