By Balkin, J.P.; Roman, Nelson and Christopher, JJ. JPMorgan Chase Bank, National Association, etc., res, v. Manish Kothary, appellant def — (Index No. 35331/09) Frederick P. Stern, P.C., Nesconset, NY, for appellant. Parker Ibrahim & Berg LLC, New York, NY (Anthony Del Guercio and Scott Parker of counsel), for respondent. In an action to foreclose a mortgage, the defendant Manish Kothary appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated November 15, 2016. The order granted the plaintiff’s motion pursuant to CPLR 306-b for an extension of time to serve the defendant Manish Kothary with the summons and complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process. ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by deleting the provision thereof granting that branch of the plaintiff’s motion which was pursuant to CPLR 308(5) to direct an alternative method for service of process, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiff. On June 8, 2007, the defendant Manish Kothary executed a note which was secured by a mortgage on real property located in Suffolk County. On the same day, Kothary also executed a consolidation, extension, and modification agreement which consolidated the note and mortgage with a prior mortgage loan balance into a single lien. In March 2008, Kothary defaulted on his monthly payments under the consolidated note, and in September 2009, the plaintiff, as the holder of the consolidated note, commenced this foreclosure action. Kothary failed to appear in the action or answer the complaint. On January 22, 2014, the Supreme Court, inter alia, granted that branch of the plaintiff’s motion which was to appoint a referee to compute the amount due to the plaintiff. Thereafter, Kothary moved to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction, and the plaintiff cross-moved pursuant to CPLR 306-b for an extension of time to serve Kothary with the summons and the complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary’s attorney. The Supreme Court granted the defendant’s motion to the extent of ordering a hearing to determine the validity of service of process, and denied the plaintiff’s cross motion without prejudice to renew. Following the hearing, the court vacated, pursuant to CPLR 5015(a)(4), Kothary’s default and the order of reference dated January 22, 2014, and, in effect, directed dismissal of the action pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction over Kothary. In December 2015, the plaintiff again moved pursuant to CPLR 306-b for an extension of time to serve Kothary with the summons and complaint, and pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary’s attorney. In the order appealed from, the Supreme Court granted the plaintiff’s motion. The court determined that the plaintiff had demonstrated both good cause for an extension of time to serve Kothary with the summons and complaint, and that an extension of time to serve Kothary was warranted in the interest of justice. Additionally, the court determined that an alternative method for service of process was appropriate inasmuch as Kothary currently resided in New Delhi, India. Kothary appeals. Generally, service of a summons and complaint must be made within 120 days after the commencement of the action (see CPLR 306-b). ”If service is not made upon a defendant within the time provided in [CPLR 306-b], the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service” (CPLR 306-b). ”Good cause requires the plaintiff to demonstrate, as a threshold matter, ‘reasonably diligent efforts’ in attempting to effect service” (Bank United, FSB v. Verbitsky, 167 AD3d 833, 833-835, quoting Leader v. Maroney, Ponzini & Spencer, 97 NY2d 95, 105). ”However, the more flexible ‘interest of justice’ standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant” (Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 AD3d 742, 744; see Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105). ”Unlike an extension request premised on good cause, a plaintiff need not establish reasonably diligent efforts at service as a threshold matter” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105; see Wells Fargo Bank, NA v. Barrella, 166 AD3d 711, 713). ”However, the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant” (Leader v. Maroney, Ponzini & Spencer, 97 NY2d at 105-106; see Bumpus v. New York City Tr. Auth., 66 AD3d 26, 32). Under the circumstances of this case, the plaintiff failed to demonstrate good cause for an extension of time to serve Kothary under CPLR 306-b (see Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 AD3d at 743; Chan v. Zoubarev, 157 AD3d 851). Nevertheless, we agree with the Supreme Court’s determination granting, in the interest of justice, that branch of the plaintiff’s motion which was pursuant to CPLR 306-b to extend the time to serve the summons and complaint upon Kothary. The plaintiff established, among other things, that the action was timely commenced, and that service was timely attempted and was perceived by the plaintiff to have been within the 120-day period but was subsequently found to have been defective (see Estate of Fernandez v. Wyckoff Hgts. Med. Ctr., 162 AD3d at 743; Chan v. Zoubarev, 157 AD3d at 852). Additionally, the plaintiff demonstrated that it has a potentially meritorious cause of action, and that there was no identifiable prejudice to Kothary as a consequence of the delay in service (see HSBC Bank USA, N.A. v. Oqlah, 163 AD3d 928, 930; Chan v. Zoubarev, 157 AD3d at 852; Singh v. Trahan, 153 AD3d 961). However, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was pursuant to CPLR 308(5) to direct an alternative method for service of process by permitting service upon Kothary’s attorney. ”CPLR 308(5) vests a court with discretion to direct an alternative method for service of process when it has determined that the methods set forth in CPLR 308(1), (2), and (4) are impracticable” (Matthews v. Barrau, 150 AD3d 836, 839; see Born To Build, LLC v. Saleh, 139 AD3d 654, 655). ”[A] plaintiff seeking to effect expedient service must make some showing that the other prescribed methods of service could not be made” (Markoff v. South Nassau Community Hosp., 91 AD2d 1064, 1065 [internal quotation marks omitted], affd 61 NY2d 283). Here, at the hearing, Kothary provided the address where he resides in New Delhi (cf. Born To Build, LLC v. Saleh, 139 AD3d at 655-656), and the plaintiff failed to submit any evidence that effectuating service in India by any of the authorized methods would have been unduly burdensome (see Tetro v. Tizov, 184 AD2d 633, 635). ”That [Kothary] resided in a foreign country did not, by itself, relieve the plaintiff of [its] obligation to make a reasonable effort to effectuate service in a customary manner before seeking relief pursuant to CPLR 308(5)” (id. at 635; see Badenhop v. Badenhop, 84 AD2d 771, 772-773). BALKIN, J.P., ROMAN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
By Balkin, J.P.; Roman, Nelson and Christopher, JJ. JPMorgan Chase Bank, National Association, res, v. Mozamel Hosain, appellant def; Federal National Mortgage Association, nonparty. (Index No. 18306/09) Solomon Rosengarten, Brooklyn, NY, for appellant. RAS Boriskin, LLC, Westbury, NY (Joseph F. Battista of counsel), for nonparty Federal National Mortgage Association. In an action to foreclose a mortgage, the defendant Mozamel Hosain appeals from (1) an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 19, 2016, and (2) an order of the same court also dated September 19, 2016. The orders, insofar as appealed from, denied that branch of the motion of the defendant Mozamel Hosain which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. ORDERED that the appeal from the second order is dismissed as academic; and it is further, ORDERED that the first order is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant Mozamel Hosain which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned is granted; and it is further, ORDERED that one bill of costs is awarded to the defendant Mozamel Hosain. In July 2009, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Mozamel Hosain (hereinafter the defendant). The defendant was served pursuant to CPLR 308(2) on July 22, 2009, but did not interpose an answer to the complaint. By notice of motion dated September 5, 2012, the plaintiff moved, inter alia, for an order of reference. However, the plaintiff subsequently withdrew its motion. By written assignment dated April 5, 2014, the plaintiff assigned the mortgage to the Federal National Mortgage Association. In April 2016, the defendant moved, inter alia, pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. The plaintiff opposed the defendant’s motion and cross-moved, inter alia, for an order of reference. In an order dated September 19, 2016, the Supreme Court, inter alia, denied that branch of the defendant’s motion. In a second order dated September 19, 2016, the court denied the defendant’s motion, granted the plaintiff’s cross motion, and referred the matter to a referee to compute the amount due on the mortgage loan. The defendant appeals from so much of the orders as denied that branch of his motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. In an order dated April 24, 2017, the Supreme Court, among other things, upon reargument, denied the plaintiff’s cross motion, inter alia, for an order of reference, and vacated the second order appealed from. Accordingly, the appeal from the second order must be dismissed as academic. Pursuant to CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned… upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” ”The language of CPLR 3215(c) is not, in the first instance, discretionary, but mandatory, inasmuch as courts ‘shall’ dismiss claims (CPLR 3215[c]) for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned” (Giglio v. NTIMP, Inc., 86 AD3d 301, 307-308; see HSBC Bank USA, N.A. v. Jean, 165 AD3d 632, 633; Pipinias v. J. Sackaris & Sons, Inc., 116 AD3d 749, 751). ”‘Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause,’ which requires the plaintiff to ‘demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action’” (HSBC Bank USA, N.A. v. Jean, 165 AD3d at 634, quoting Aurora Loan Servs., LLC v. Hiyo, 130 AD3d 763, 764). Here, the defendant was served pursuant to CPLR 308(2) on July 22, 2009, and defaulted by failing to serve an answer within 30 days thereof (see CPLR 320[a]). However, neither the plaintiff nor the Federal National Mortgage Association took steps to initiate proceedings for the entry of a default judgment until September 2012, and the plaintiff has set forth no reasonable excuse for said failure. Although any motions in the action were held in abeyance while the parties participated in a series of foreclosure settlement conferences (see 22 NYCRR 202.12-a[c][7]; U.S. Bank, N.A. v. Dorvelus, 140 AD3d 850, 852), the plaintiff’s motion still was made more than one year after the matter was released from the settlement conference part in July 2011. Under the circumstances, the Supreme Court should have granted that branch of the defendant’s motion which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. BALKIN, J.P., ROMAN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur. 2016-11515 JPMorgan Chase Bank, National Association, respondent, v. Mozamel Hosain, appellant defendants; Federal National Mortgage Association, nonparty. (Index No. 18306/09) Motion by the respondent, inter alia, to dismiss the appeals from two orders of the Supreme Court, Kings County, both dated September 19, 2016, on the ground that the appellant is no longer a necessary party and it has moved to discontinue the action against the appellant. By decision and order on motion of this Court dated October 10, 2017, that branch of the motion which is to dismiss the appeals was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it is ORDERED that the branch of the motion which is to dismiss the appeals is denied. BALKIN, J.P., ROMAN, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.
