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LaSalle Bank N.A. Trustee v Caffrey 2007 NY Slip Op 30391(U) March 6, 2007 Supreme Court, Suffolk County Docket Number: 0009227 Judge: Jeffrey Arlen Spinner Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

SUPREME COURT-STATE OF NEW YORK I.A.S. PART XXI-SUFFOLK COUNTY

HON. JEFFREY ARLEN SPINNER Justice of the Supreme Court
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I LaSALLE BANK NATIONAL ASSOCIATION ! TRUSTElE,
plaintiff,
- against -

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I Index No.: 2006-09227
I Mot. Seq. 003-MD CASEDISP
Original Return Date: January 23, 2007 February 2.8,2007

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I Final Submit Date:
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ORDER UPON APPLICATION

Defmdants
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One Old Country Road Carle Place, New York 1 1514

I REFEREE I 34 Dewey Street
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Kenneth A. Deegan Esq. Huntington, New York 11743

This is ar action wherein the Plaintiff claims foreclosure of a mortgage which encumbers real property commonly known as 7 Stony Hollow Court, Greenlawn, Town of Huntington, New York. The Plaintiffs Siummons, Complaint and Notice of Pendency were filed with the Clerk of Suffolk County on March 28,2006 and, following the usual calendar practice, an Order of Reference was granted and thereafter, on October 12,2006, a Judgment of Foreclosure and Sale was granted by the Court (Hon. Daniel Loughlin, J.S.C.). In pursuance thereof, the Referee schdeuled a foreclosure sale for January 12, 2007. Thereafter and on January 10, 2007, Special Term Part II of this Court @on. Raplh F. Costello, J.S.C.) Granted an Order To Show Cause in favor of the Defendant TIMOTHY McCAFFREY which served to stay the sale scheduled for January 12,2007. The same was served upon counsel for Plaintiff and the Referee and was returnable on January 23. 2007. On The return date, only counsel for the Defendant appeared and requested an adjournment. The same

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wa:; granted up to February 28,2007 with the stay of proceedings extended up to the date of the determination of the De fendant's application by this Court. Plaintiffs opposing papers by David Lee Esq. dated January 19,2007 were rec8:ived by the Court on January 22,2007. :_he Defendant's application is made pursuant to CPLR 5015(a)( 1) and includes an Affidavit from the Defendant asslxting that he was never served with process in this action and that the first time he became aware of a foreclosure act on was upon receiving a Notice of Sale, annexed to the moving papers as Exhibit A.
In response, the Plaintiff denies the Defendant's claim of non-service and includes copies of Affidavits of Service pursuant to CPLR 306 which reflect "affix and mail" service pursuant to CPLR 308(4) upon the said Defendant.

Invoking the provisions of CPLR 5015(a)( I), the Defendant asserts that his "excusable default" under that statute arises as a result of the lack of service of the Summons and Complaint. This claim for relief necessarily brings into play the provisions of CPLR 3 17 which require the movant to demonstrate not only a reasonable excuse for the default but a meritorious defense to the underlying action as well, else the application must fail, Choudhw v. Edward 300 AD 3d 529 (2ndDept. 2002) Henw v. Kuveke 9 AD 3d 476 (2ndDept. 2004). It is within the sound discretion of the trial court to determine the reasonableness of the proffered excuse for the default Barbaaallo v. u i o n w i d e Exterminating & Deodorizing Inc. 260 AD 2d 518 (2nd Dept. 1999). The undated Affidavit of one Alexander Printz asserts that on April 5,2006 at 5:30 p.m. he affixed a copy of the Summons and Complaint to the door at 7 Stony Hollow Court, Greenlawn followed by mailing a copy of the same on 4pril 10,2006 The Affidavit also states that he had made previous unsuccessful attempts to serve the Defendant on April 4, :!006 at 6:40 p.m., April 3,2006 at 8: 15 a.m., April 1,2006 at 11:40 a.m. and March 3 1,2006 at 1:30 p.m. The enumerated attempts on different days and at various times would appear to constitute "due diligence" as contemplated by the statute, Rodrimez v. Khamis 201 AD 2d 715 (2nd Dept. 1994), Marballie 11. Lefrak 201 AD 2d 70;' (2nd Dept. 1994). Moreover, an affidavit that conforms to the requirements of CPLR 306 constitutesprimafacie evidence of due and proper service, Maldonado v. County ofSuffolk229 AD 2d 376 (2nd Dept. 1996). This creates a presumption, albeit a rebuttable one, that the matters set forth in the affidavit are true, unless the movant offers evidence to the contrary, Simonds v. Grobman 277 AD 2d 369 (2nd Dept. 2000). The Defendant's affidavit states, in pertinent part, in Paragraph 3 thereof that "...I was never served with a Szanmons a ~ z Complaint. " Although a meritorious defense is not specifically enumerated, the Defendant makes d refkrence to fruitless attempts to negotiate a payment plan with the Plaintiff, indicating that he was indeed in default on his obligation. In the view ofthis Court, such an assertion, without more, does not constitute a meritorious defense to 1he Plain tiffs action. Too, the Defendant's mere denial of service, without more, is legally insufficient to rebut the presumption ofproper service in the process server's affidavit, Manhattan Savings Bankv. K & 231 AD 2d 499 (2"` Dept. 1996) leave to auveal denied 91 NY 2d 802, Carrenard v. Mass I 1 AD 3d 501 (2nd Dept. 2004). Based upon the foregoing, the Court is constrained to determine that the Defendant has failed to satisfy the statutory requirements for relief pursuant to CPLR 50 15(a)( 1).

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It is, therefore,

ORDERED that the application of the Defendant TIMOTHY CAFFREY is hereby denied in its entirety; and it
is fiJrther

ORDERE3Dthat the stay of proceedings heretofore granted by this Court shall be and the same is hereby vacated, dissolved arid of no further force and effect.
`This shall constitute the decision, judgment and order of this Court. Dated: March 6, 2007 Riverhead. New York

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FINAL DISPOSITION

- NON-FINAL DISPOSITION
- DO NOT SCAN

X SCAN

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