Deutsche Bank Natl. Trust Co. v. Hall

Deutsche Bank Natl. Trust Co. v Hall 2026 NY Slip Op 05932 October 14, 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. Deutsche Bank National Trust Company, etc., respondent, v Roy Hall, appellant, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 14, 2026 2025-01573, (Index No. 610529/15) Betsy Barros, J.P. Lillian Wan Donna-Marie E. Golia Elena Goldberg Velazquez, JJ. Andrea S. Gross, St. Albans, NY, for appellant. Atlas Solomon LLP, New York, NY (Jordan M.Smith of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Roy Hall appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated January 2, 2025. The order, insofar as appealed from, granted the plaintiff's motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon that defendant, and denied those branches of that defendant's cross-motion which were pursuant to CPLR 306-b and 3211(a) to dismiss the complaint insofar as asserted against him. ORDERED that the order is affirmed insofar as appealed from, with costs. In July 2005, the defendant Roy Hall (hereinafter the defendant) executed a note that was secured by a mortgage on certain real property located in Amityville. In August 2010, the plaintiff commenced an action against the defendant, among others, to foreclose the subject mortgage (hereinafter the 2010 action). However, by order dated March 18, 2015, the Supreme Court directed dismissal of the 2010 action pursuant to CPLR 3215(c). In October 2015, the plaintiff commenced this action against the defendant, among others, to foreclose the mortgage. On October 10, 2015, the plaintiff served copies of the summons, complaint, certificate of merit, and RPAPL 1303 notice upon an individual believed to be the defendant at the subject property. The defendant interposed an answer asserting various affirmative defenses, including lack of personal jurisdiction. In December 2015, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him. The plaintiff opposed the motion. In January 2018, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. In an order dated September 9, 2019, the Supreme Court granted the defendant's motion to the extent of scheduling a hearing to determine, inter alia, whether the defendant had been properly served with the summons and compliant, and denied the plaintiff's motion without prejudice. In December 2019, after a hearing, the Supreme Court determined that the person served on October 10, 2015, was not the defendant and directed the plaintiff to move for an extension of time to serve the defendant. The plaintiff moved pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant. The defendant opposed the motion [*2]and cross-moved, among other things, pursuant to CPLR 306-b and 3211(a) to dismiss the complaint insofar as asserted against him, based on the plaintiff's failure to serve him with the summons and complaint and its failure to comply with the notice requirement of RPAPL 1303. In an order dated January 2, 2025, the court, inter alia, granted the plaintiff's motion and denied those branches of the defendant's cross-motion. The defendant appeals. Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). "Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice" (Bhatara v Kolaj, 222 AD3d 926, 930 [internal quotation marks omitted]). "The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant" (id.; see U.S. Bank N.A. v Bindra, 217 AD3d at 720). "In considering the interest of justice standard, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to the defendant" (Bhatara v Kolaj, 222 AD3d at 930 [internal quotation marks omitted]; see U.S. Bank N.A. v Bindra, 217 AD3d at 720). "The determination of whether to grant an extension of time in the interest of justice is within the discretion of the motion court" (Bhatara v Kolaj, 222 AD3d at 930; see U.S. Bank N.A. v Bindra, 217 AD3d at 720). Here, the Supreme Court providently exercised its discretion in granting the plaintiff's motion in the interest of justice, and properly determined that dismissal of complaint insofar as asserted against the defendant pursuant to CPLR 306-b and 3211(a)(8) on the ground of the plaintiff's failure to serve the defendant with the summons and complaint was not warranted. The plaintiff demonstrated, among other things, that the action was timely commenced, that service was timely attempted and was believed by the plaintiff to have been made within 120 days after the commencement of the action, but was subsequently found to be defective, and that the extension of time would not prejudice the defendant (see Hall v L & A Operational, LLC, 228 AD3d 846, 847; Bhatara v Kolaj, 222 AD3d at 931; U.S. Bank N.A. v Bindra, 217 AD3d at 720; Wells Fargo Bank, N.A. v Boakye-Yiadom, 213 AD3d 976, 977; HSBC Bank, USA v Gibatov, 183 AD3d 555, 556-557; JPMorgan Chase Bank, N.A. v Kothary, 178 AD3d 791, 793). Additionally, the plaintiff demonstrated a potentially meritorious cause of action (see Hall v L & A Operational, LLC, 228 AD3d at 847; Bhatara v Kolaj, 222 AD3d at 931; U.S. Bank N.A. v Bindra, 217 AD3d at 721; see generally Deutsche Bank Natl. Trust Co. v Kingsbury, 171 AD3d 871, 871). The defendant's contention that dismissal of the complaint insofar as asserted against him was warranted on the ground that the plaintiff failed to comply with RPAPL 1303 is without merit, as RPAPL 1303 only requires that an RPAPL 1303 notice be given to a mortgagor if the action relates to an owner-occupied one-to-four family dwelling, and here the subject property was not owner-occupied (see RPAPL 1303[1][a]; Wells Fargo Bank, N.A. v Paulsen, 237 AD3d 1348). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon the defendant, and properly denied those branches of the defendant's cross-motion which were pursuant to CPLR 306-b and 3211(a) to dismiss the complaint insofar as asserted against him. BARROS, J.P., WAN, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court