Wilmington Sav. Fund Socy., FSB v. Bryant

Wilmington Sav. Fund Socy., FSB v Bryant 2026 NY Slip Op 05570 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Wilmington Savings Fund Society, FSB, etc., respondent-appellant, v Dianne Bryant, appellant-respondent, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-05190, (Index No. 713182/21) Lara J. Genovesi, J.P. William G. Ford Carl J. Landicino Susan Quirk, JJ. McCarthy Fingar LLP, White Plains, NY (Robert H. Rosh of counsel), for appellant-respondent. Margolin, Weinreb & Nierer, LLP, Syosset, NY (Seth D. Weinberg of counsel), for respondent-appellant. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Dianne Bryant appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Queens County (Lance Evans, J.), entered December 13, 2023. The order, insofar as appealed from, (1) in effect, granted those branches of the motion of the defendant Dianne Bryant which were pursuant to CPLR 5015(a)(4) to vacate an order and judgment of foreclosure and sale (one paper) of the same court (Mojgan Cohanim Lancman, J.) entered December 29, 2020, and an order of the same court (Janice A. Taylor, J.) entered June 22, 2016, entered upon her failure to appear or answer the complaint, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her only to the extent of determining that the defendant Dianne Bryant is entitled to a hearing to determine the validity of service of process upon her, (2) in effect, held in abeyance that branch of that defendant's motion which was for a hearing to determine the validity of service of process upon her, and (3) granted the plaintiff's cross-motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Dianne Bryant. The order entered December 13, 2023, insofar as cross-appealed from, in effect, granted those branches of the motion of the defendant Dianne Bryant which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and the order entered June 22, 2016, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her to the extent of determining that the defendant Dianne Bryant is entitled to a hearing to determine the validity of service of process upon her. ORDERED that the appeal from so much of the order entered December 13, 2023, as, in effect, held in abeyance that branch of the motion of the defendant Dianne Bryant which was for a hearing to determine the validity of service of process upon her is dismissed, as no appeal lies as of right from an order holding a motion in abeyance (see CPLR 5701[a][2]; Matter of Property Located at 162nd Ave. between Shellbank Basin & 95th St. in the Borough of Queens, 235 AD3d 761, 763-764), and leave to appeal has not been granted; and it is further, ORDERED that on the Court's own motion, the notices of appeal and cross-appeal from so much of the order entered December 13, 2023, as granted those branches of the motion of the defendant Dianne Bryant which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and the order entered June 22, 2016, and pursuant to CPLR [*2]3211(a)(8) to dismiss the complaint insofar as asserted against her to the extent of determining that the defendant Dianne Bryant is entitled to a hearing to determine the validity of service of process upon her are deemed to be applications for leave to appeal and cross-appeal, respectively, from that portion of the order, and leave to appeal and cross-appeal is granted (see CPLR 5701[c]); and it is further, ORDERED that the order entered December 13, 2023, is modified, on the law, (1) by deleting the provision thereof granting those branches of the motion of the defendant Dianne Bryant which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and the order entered June 22, 2016, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her to the extent of determining that the defendant Dianne Bryant is entitled to a hearing to determine the validity of service of process upon her, and substituting therefor a provision denying those branches of the motion, and (2) by deleting the provision thereof granting the plaintiff's cross-motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant Dianne Bryant, and substituting therefor a provision denying the cross-motion as academic; as so modified, the order is affirmed insofar as reviewed on the appeal; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. In September 2008, the defendant Dianne Bryant (hereinafter the defendant) executed a note in the sum of $274,050 in favor of 1st Republic Mortgage Bankers, Inc. (hereinafter 1st Republic). The note was secured by a mortgage on certain real property located in Queens County (hereinafter the premises). The defendant allegedly defaulted on her obligations under the note and mortgage by failing to make the monthly payments due November 2009, and thereafter. By an assignment of mortgage in July 2010, Mortgage Electronic Registration Systems, Inc., as nominee for 1st Republic, assigned the mortgage to BAC Home Loans Servicing, LP (hereinafter BAC). In July 2010, BAC commenced this action against the defendant, among others, to foreclose the mortgage. According to an affidavit of service filed on July 28, 2010, the defendant was served personally at the premises on July 24, 2010, at 8:50 a.m. The defendant failed to answer the complaint or otherwise appear in the action. In April 2015, the Supreme Court granted BAC's motion for leave to enter a default judgment against the defendant and for an order of reference. In an order entered June 22, 2016 (hereinafter the order of reference), the court referred the matter to a referee to ascertain and compute the amount due on the note. In an order and judgment of foreclosure and sale entered December 29, 2020, the Supreme Court, among other things, confirmed the referee's report, amended the caption to substitute Wilmington Savings Fund Society, FSB (hereinafter Wilmington), as the plaintiff, based on a 2016 assignment of mortgage, and directed the sale of the premises. In November 2021, the defendant moved, inter alia, pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and the order of reference, entered upon her default, for failure to acquire personal jurisdiction over her and failure to comply with certain conditions precedent to the commencement of the action, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction or, in the alternative, for a hearing to determine the validity of service of process upon her. In March 2022, Wilmington cross-moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. In an order entered December 13, 2023, the Supreme Court determined that the defendant's submissions were sufficient to rebut the presumption of proper service created by the affidavit of service and that an evidentiary hearing was required. The court nevertheless "deferred" a traverse hearing and otherwise denied the defendant's motion "at this time." The court granted, "in the interest of justice," Wilmington's cross-motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant, "provided that service occurs within 120 days of the date hereof." The defendant appeals, and Wilmington cross-appeals. "Pursuant to CPLR 5015(a)(4), 'the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person . . . upon the ground of . . . lack of jurisdiction to render the judgment or order'" (HSBC Bank USA, N.A. v Rahmanan, 194 AD3d 792, 793 [alteration omitted]). "Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308" (DB Structured Prods., Inc. v Zaman, 227 AD3d 864, 865; see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 896-897). The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void (see HSBC Bank USA, N.A. v Rahmanan, 194 AD3d at 793; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897). Pursuant to CPLR 308(1), personal service may be made "by delivering the summons within the state to the person to be served." "[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, NA v Chaplin, 65 AD3d 588, 589; see HSBC Bank USA, N.A. v Rahmanan, 194 AD3d at 794). "'Although 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, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Federal Natl. Mtge. Assn. v Grossman, 205 AD3d 770, 771 [internal quotation marks omitted], quoting BAC Home Loans Servicing, LP v Carrasco, 160 AD3d 688, 689; see HSBC Bank USA, N.A. v Rahmanan, 194 AD3d at 793). "The denial must be substantiated by specific, detailed statements, and/or independent evidence that contradicts the allegations in the affidavit of service. If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" (Creswell Invs., Ltd. v Brazil+Q1 Ltd., 234 AD3d 667, 669 [citations omitted]; see Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d 758, 759; Mizerek v Rosenfeld, 162 AD3d 1005, 1007). Here, the affidavit of service constituted prima facie evidence of valid service pursuant to CPLR 308(1) (see Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d at 760). The process server alleged therein that on July 24, 2010, at 8:50 a.m., at the premises, he served the summons and complaint and RPAPL 1303 notice on the defendant by delivery to the defendant personally. Contrary to the Supreme Court's determination, the defendant failed to rebut the presumption of proper service established by the affidavit of service. In her affidavit submitted in support of the motion, the defendant generally denied receipt of service but failed to specifically address the alleged service at the premises on July 24, 2010 (see Newlands Asset Holding Trust v Vasquez, 218 AD3d 786, 788), or aver that she did not meet the description included in the affidavit of service (cf. Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d at 760). The defendant further provided a letter from the New York City Police Department, Human Resources Division. Although the defendant averred that she was at work at the time she allegedly was served, the evidence submitted failed to establish that she was not at the premises at the time of service (see Newlands Asset Holding Trust v Vasquez, 218 AD3d at 788; Tuttnauer USA Co., Ltd. v Russo, 216 AD3d 846, 847; U.S. Bank N.A. v Smith, 210 AD3d 725, 727). Rather, the letter merely established that she was employed as a "Police Comm Tech" from July 20, 1987, to January 26, 2018, and that she worked 35 hours per week. The averments in the affidavit of the defendant's daughter, Margie Bryant, were also insufficient to corroborate the defendant's denial of service. Further, the Supreme Court properly concluded that the defendant was not entitled to vacatur of the order of reference and the order and judgment of foreclosure and sale for failure to comply with certain conditions precedent to the commencement of the action, as she failed to vacate her default in appearing or answering the complaint (see Deutsche Bank Natl. Trust Co. v O'Connor, 223 AD3d 872, 877; Newlands Asset Holding Trust v Vasquez, 218 AD3d at 789; Deutsche Bank Natl. Trust Co. v Wentworth, 211 AD3d 684, 687). Accordingly, the Supreme Court should have denied those branches of the defendant's motion which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of [*3]foreclosure and sale and the order of reference, and pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her and should have denied, as academic, Wilmington's cross-motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court