Bank of New York Mellon v DeFilippo
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure; personal jurisdiction based on service of process and the due-diligence prerequisite for 'affix and mail' service.
The Supreme Court, Kings County, denied DeFilippo’s motion to vacate the order of reference and the foreclosure judgment and to dismiss for lack of personal jurisdiction.
The denial order; the 2010 order of reference and the 2020 order and judgment of foreclosure and sale were vacated; the complaint against DeFilippo was dismissed for lack of personal jurisdiction.
The plaintiff failed to strictly comply with New York Civil Practice Law and Rules (CPLR) 308(4) [service by affixing to the door and mailing, permitted only when personal service under CPLR 308(1) and (2) cannot be made with due diligence]. The process server’s three attempts were at times when the defendant could reasonably be at work or otherwise away, and the server did not pursue an identified workplace lead before resorting to affix-and-mail. Without valid service, the court lacked personal jurisdiction, warranting vacatur under CPLR 5015(a)(4) [relief from a default judgment for lack of personal jurisdiction] and dismissal under CPLR 3211(a)(8) [dismissal for lack of personal jurisdiction].
Background
DeFilippo executed a note in 2005 secured by a Long Beach mortgage. The plaintiff commenced foreclosure in 2008 and purported to serve DeFilippo via CPLR 308(4). DeFilippo defaulted. The court granted an order of reference in 2010 and entered an order and judgment of foreclosure and sale in 2020. In 2023, DeFilippo moved to vacate the prior orders and to dismiss for lack of personal jurisdiction, arguing service was defective.
Lower Court Decision
The Supreme Court, Kings County, denied the motion, leaving the order of reference and foreclosure judgment in place.
Appellate Division Reversal
Reversed on the law, with costs. The Appellate Division found the plaintiff did not exercise due diligence before resorting to CPLR 308(4): two of three attempts were on weekdays at times reasonably associated with commuting or work; the Saturday attempt occurred at a time when the defendant might not be home; and the process server failed to follow up on a 'people at work' search identifying a business address. Consequently, service was improper, the court lacked personal jurisdiction, and all subsequent proceedings were null and void. The court granted vacatur of the 2010 order of reference and the 2020 foreclosure judgment and dismissed the complaint against DeFilippo for lack of personal jurisdiction. Remaining arguments were deemed academic.
Legal Significance
Reaffirms strict compliance with CPLR 308(4)’s due-diligence prerequisite before employing affix-and-mail service. Process servers must make genuine inquiries into the defendant’s whereabouts and place of employment and attempt service at varied, reasonable times, including pursuing identified workplace leads. Failure to do so deprives the court of personal jurisdiction, rendering resultant orders and judgments void and subject to vacatur years later under CPLR 5015(a)(4).
Before using CPLR 308(4), plaintiffs must document diligent, meaningful efforts to personally serve, including pursuing known workplace information and attempting service at varied times; otherwise, service is defective, and foreclosure orders and judgments can be vacated and the action dismissed for lack of personal jurisdiction.