Justice William Giacomo
JPMorgan Chase Bank (JPMC) commenced this residential mortgage foreclosure suit against defendants. Yet, despite allegedly being served under CPLR 308(2), defendants did not file an answer in the action, and JPMC now moved for an order of reference. Defendants cross-moved for dismissal of the action arguing they were never properly served. William Todd appeared pro se, and as Leigh-Elizabeth Todd’s attorney, argued service upon “Jane” Todd was invalid. William contended that only he and his four children, all under the age of 18, resided at the subject premises, claiming that Leigh-Elizabeth did not live at the subject address since 2008. He argued he was not home at the time of the alleged service. The court stated an affidavit of a process server constituted prima facie evidence defendant was properly served. It found no traverse hearing was necessary in the instant matter as William’s affidavit was conclusory and its veracity suspect. The court noted Leigh-Elizabeth sued a former babysitter and the Department of Labor, and stated she resided at the subject premises. It ruled she could not claim to reside at the premises in one action, but in another one claim she resided in Yonkers, denying defendants’ cross-motion.
