In Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its Trustee v. Dimella, et al., a foreclosure proceeding, Adam Leitman Bailey, P.C. moved for default judgment and an order of reference in favor of the Plaintiff and the Borrower cross-moved to dismiss or, in the alternative, to vacate his default in the action.
The Borrower was served with process in the action in July of 2015 at his place of business, pursuant to CPLR § 308(2), by leaving copies of the summons and complaint with a co-worker, a person of suitable age and discretion.
Despite actively participating in the foreclosure settlement conferences held in the action beginning in December of 2015, the Borrower waited nearly one year to move to dismiss or, in the alternative, to open his default, notably, in opposition to Plaintiff’s motion for default judgment and an order of reference.
In support of dismissal, the Borrower argued that he was not served with process in the action alleging that there was no one who worked with him fitting the description given by the process server in his affidavit of service at the time and date of service.
The Borrower further argued in opposition to Plaintiff’s motion and in support of his cross-motion, that Plaintiff failed to establish compliance with both the notice requirements under the subject note and mortgage and RPAPL § 1304.
In further support of Plaintiff’s motion and in opposition to the Borrower’s cross-motion, ALBPC successfully argued and established that: (i) Plaintiff was not required to demonstrate compliance with RPAPL § 1304 in order to be entitled to default judgment, as a matter of law, as the defense had not been raised by the Borrower in the action, (ii) the Borrower was not entitled to a 90 day notice pursuant to RPAPL § 1304 as he does not reside at the subject mortgaged premises, and (iii) Plaintiff was not required to demonstrate compliance with the notice provisions in the note and mortgage in order to establish its entitlement to default judgment, as a matter of law, as compliance was not raised as a defense to the action.
A traverse hearing was held based upon the Borrower’s challenge to service, at which ALBPC presented evidence to the Court calling into question the Borrower’s credibility, including prior actions in which the Borrower denied service on similar grounds.
Based on the testimony of Plaintiff’s process server and the credibility evidence submitted by ALBPC, in a decision and order dated May 17, 2017, Judge Terry Jane Ruderman found service upon the Borrower to be valid.
Subsequently, in a decision and order dated September 18, 2017, Judge Charles D. Wood accepted and adopted all of ALBPC’s arguments in granting Plaintiff’s motion in its entirety and denying the Borrower’s cross-motion in its entirety.
Jackie Halpern Weinstein, Esq. and another attorney of the Foreclosure Group and Colin E. Kaufman, Esq. of the Litigation Department at Adam Leitman Bailey, P.C. won this motion for the foreclosing Plaintiff.