Partners for Payment Relief DE III, LLC v. Crooks
Attorneys and Parties
Brief Summary
Mortgage foreclosure and personal jurisdiction based on service of process in a multifamily residence under CPLR 308(2) [permits service by delivering to a person of suitable age and discretion at the defendant's dwelling place or usual place of abode, plus mailing].
The Supreme Court, Bronx County granted Crooks’s motion under CPLR 5015(a)(4) [authorizes vacatur of a judgment for lack of personal jurisdiction], vacated the judgment of foreclosure and sale and the referee’s deed, dismissed the complaint, and stayed related Housing Court proceedings.
The Appellate Division reversed the order to the extent it summarily vacated and dismissed without a hearing, and remanded for a traverse hearing on service.
There are factual disputes about where within the three-story building service occurred and on which floor Crooks resided. The affidavit of service does not specify the floor, necessitating a traverse hearing to determine whether service under CPLR 308(2) was properly effectuated.
Background
In this foreclosure action, after a judgment of foreclosure and sale, a referee’s deed transferred the property to the plaintiff. Crooks moved to vacate, arguing lack of personal jurisdiction due to improper service. The process server stated he delivered the summons and complaint to a person of suitable age and discretion in Crooks’s building, but the record shows discrepancies about whether service occurred on the first or second floor and which floor Crooks actually occupied in the three-story residence. The affidavit of service did not identify the floor.
Lower Court Decision
The Supreme Court, Bronx County granted Crooks’s CPLR 5015(a)(4) motion, vacated the judgment of foreclosure and sale and the referee’s deed, dismissed the complaint for lack of personal jurisdiction, and stayed related New York City Civil Court (Housing Court) proceedings.
Appellate Division Reversal
The Appellate Division unanimously reversed on the law, without costs, and remanded for a traverse hearing to determine whether plaintiff properly served Crooks under CPLR 308(2). Only after that hearing can the court resolve Crooks’s motion to vacate and dismiss. The court noted flexibility in service at a multifamily residence but found factual disputes requiring a hearing.
Legal Significance
When service in a multifamily dwelling is challenged and the affidavit of service is ambiguous about the defendant’s actual dwelling place or usual place of abode (e.g., unspecified floor or unit), courts must hold a traverse hearing before granting jurisdictional relief under CPLR 5015(a)(4). Summary vacatur and dismissal are inappropriate where material facts about service are disputed.
Contested service under CPLR 308(2) in a multifamily residence, especially where the affidavit omits key location details like the specific floor or unit, requires a traverse hearing; a court should not vacate a foreclosure judgment and deed or dismiss for lack of personal jurisdiction without first resolving those factual issues.