Bank of New York Mellon v Simpson, as administrator of the estate of Simpson
Attorneys and Parties
Brief Summary
Mortgage foreclosure—whether service of process on the borrower complied with New York Civil Practice Law and Rules (CPLR) 308(4) [affix-and-mail service permitted only after due diligence attempts under 308(1) or (2)], and whether lack of proper service required vacatur under CPLR 5015(a)(4) [relief from judgment for lack of jurisdiction] and dismissal under CPLR 3211(a) [motion to dismiss on specified grounds].
The Supreme Court (Kings County) denied the administrator's motion to vacate the foreclosure judgment and dismiss for lack of personal jurisdiction, accepting the affidavit of service as sufficient and declining to hold a hearing.
The denial of the branches of the motion seeking vacatur under CPLR 5015(a)(4) and dismissal under CPLR 3211(a) without a hearing.
Although the process server’s affidavit established prima facie proper CPLR 308(4) service, the defendant rebutted the presumption with GPS records showing an attempted service at a different address on one date, one attempt occurring on President’s Day, and only limited inquiry into employment—necessitating a traverse hearing on due diligence and proper service.
Background
The plaintiff commenced a foreclosure action in 2013 against borrower Georgia Simpson, who never appeared. The borrower died in October 2017. In November 2019, letters of administration issued appointing Sandra Simpson as administrator. Plaintiff moved to substitute the administrator, confirm the referee’s report, and obtain a judgment of foreclosure and sale, which was granted on June 16, 2022. In March 2023, the administrator moved to vacate the judgment for lack of personal jurisdiction based on improper service on the borrower and to dismiss the complaint. The motion relied on alleged defects in CPLR 308(4) service, including GPS discrepancies and inadequate due diligence.
Lower Court Decision
By order dated September 7, 2023, the Supreme Court denied the branches of the administrator’s motion seeking vacatur under CPLR 5015(a)(4) and dismissal under CPLR 3211(a), crediting the process server’s affidavit and not conducting a hearing.
Appellate Division Reversal
Reversed insofar as appealed. The Appellate Division held that the process server’s affidavit created a presumption of proper service, but the administrator’s submissions—including GPS records showing service attempts at a different address on one date, one attempt on a national holiday (President’s Day), and limited employment inquiry—sufficiently rebutted the presumption. The court remitted for a hearing to determine whether CPLR 308(4) service was properly effected and for a new determination thereafter on vacatur and dismissal.
Legal Significance
Reaffirms strict compliance with CPLR 308(4) due diligence before resorting to affix-and-mail service, and recognizes that objective data (such as process server GPS records) can rebut the presumption created by an affidavit of service, triggering a traverse hearing. If service is improper, the court lacks personal jurisdiction and the judgment is void.
In foreclosure actions, affix-and-mail service under CPLR 308(4) must be preceded by genuine, varied-time attempts and meaningful inquiries into the defendant’s whereabouts and employment; discrepancies revealed by GPS data, holiday attempts, or minimal inquiries can require a hearing and potentially void the judgment for lack of personal jurisdiction.