The following e-filed papers bearing NYSCEF document numbers 321-333 were read on this motion filed on March 5, 2024, brought by order to show cause, of the defendant ARLENE UBIETA MENDEZ (“Arlene Mendez” or “Defendant”), seeking, among other relief, a temporary stay of the appointed Referee’s foreclosure sale of the subject real property, 79-15 210th Street, Hollis Hills, New York 11364, scheduled for March 8, 2024, and vacating Plaintiff’s Order of Reference and Judgment of Foreclosure and Sale, pursuant to inter alia, CPLR 5015(4) and dismissal for lack of jurisdiction. Introduction Adjudication of the order to show cause filed in this matter turns first on whether the Defendant, Arlene Mendez, was properly served with the summons and complaint. Pursuant to the Order of this Court, dated March 7, 2024 (Doc. No. 340), a traverse hearing was held on July 16, 2024. In short, Plaintiff failed to establish that the Defendant was properly served with the summons and complaint. Accordingly, this matter must be dismissed as to Defendant Arlene Mendez. Factual Background This action, seeking foreclosure of the mortgaged premises located at 79-15 210th Street, Hollis Hills, NY, was commenced on July 24, 2015, by the filing of a summons and complaint. On or about July 30, 2015, the Plaintiff claims that the Defendant was served via substituted service on her husband Juan Mendez, who is also a Defendant in this action. It is this service, that was the focus of the traverse hearing. By decision dated February 7, 2022, the Court granted Plaintiff’s motion for summary judgment and order of reference, and deemed all non-appearing and non-answering defendants (including Arlene Mendez) to be in default, and denied the cross-motion of defendant Juan Mendez (Doc. No. 274). On October 16, 2023, the Court granted Plaintiff’s motion for a judgment of foreclosure and sale (Doc. No. 312). On December 6, 2023 (Doc. No. 316), the Court signed the judgment of foreclosure and sale. A sale of the subject property was scheduled for March 8, 2024. On March 5, 2024, Defendant Arlene Mendez filed the instant order to show cause seeking a temporary stay of the referee’s foreclosure sale of the property and vacating the order of reference and judgment of sale, and dismissal of the action. In the main, Defendant Arlene Mendez argued that she was never served with the summons and complaint. Oral argument was heard on March 7, 2024. Based on the papers submitted, as well as oral argument, the Court ordered that a traverse hearing be held regarding service of process upon Arlene Mendez and that the sale of the property was stayed pending resolution of the motion (Doc. No. 340). The Traverse Hearing A traverse hearing was held on July 16, 2024. At the hearing, the Plaintiff sought to introduce the affidavit of the process server Kenneth Wonica (“Wonica”). The affidavit indicates that Defendant’s husband Juan Mendez was served on July 30, 2015, at 8:54 A.M., at 79-15 210th Street, Hollis Hills, New York 11364. See Plaintiff’s Ex. 1. Wonica did not appear at the hearing. Rather, Plaintiff’s counsel explained that his office made attempts to contact Mr. Wonica without success. Tr. at p. 3.1 Plaintiff’s counsel explained that he and the office reached out to the process server company, and were informed that Wonica was no longer employed by them and that it had no idea as to his whereabouts. Tr. at pp. 3-4. Plaintiff therefore sought admission of the affidavit of the process server into evidence given Wonica’s unavailability. No testimony was offered in regards to the Wonica affidavit or otherwise. Plaintiff thereafter rested its case. Defendant presented two witnesses. The first witness, Juan Mendez, the spouse of Arlene Mendez, testified that he had never been served with the summons and complaint in July of 2015 and further, at that time, never informed his wife about the case. Tr. at p. 7. Rather, he testified that on July 30, 2015, the time of the alleged service of the summons and complaint, he was on vacation in Washington D.C. with his wife (defendant Arlene Mendez), children and relatives. Tr. at p. 8. In support of his testimony, Defendant introduced assorted photographs relating to the trip. Tr. at pp. 10-16; Def. Exs. A1-A4. In addition, a receipt for Defendants’ stay at the Washington Hilton Hotel in Washington D.C. was admitted into evidence. Juan Mendez testified that the receipt reflects his stay with his family in Washington D.C., from July 27, 2015 to July 30, 2015 at 11:09 am. Tr. at p. 24; Def. Ex. C1. In addition, Defendant introduced into evidence travel insurance from Alliance Global Assistance, covering the dates of July 27, 2015 to August 3, 2015. Tr. at p. 27; Def. Ex. D. Finally, Juan Mendez testified that he had rented a car for the trip and an invoice from Hertz Rental was introduced into evidence reflecting the rental of the car from the period July 27, 2015 to August 3, 2015. Tr. at p. 28; Def. Ex E. Arlene Mendez also testified on her behalf. Defendant testified that she was in Washington D.C. with her husband, cousin, his wife, his three children and her children, the twins, on July 30, 2015, and corroborated her presence in the pictures introduced into evidence. Tr. at pp. 35-36, 39-40. Defendant testified that she had never been served by a process server with a summons and complaint, and first found out about the case in the spring of 2016. Tr. at pp. 37-38. Discussion The CPLR offers several different methods of service. Of relevance here, CPLR 308 (2) provides that service can be effected by delivering the summons within the state to “a person of suitable age or discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served.” “The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff” (Wells Fargo Bank, NA v. Chaplin, 65 AD3d 588, 589 [2d Dept 2009]). At a traverse hearing, the plaintiff bears “the burden of establishing jurisdiction by a preponderance of the evidence” (Gordon v. Nemeroff Realty Corp., 139 AD2d 492, 493 [2d Dept 1988]; see also Citibank, N.A. v. K.L.P. Sportswear, Inc., 144 AD3d 475, 476 [1st Dept 2016] ["Plaintiff met its burden at the traverse hearing of demonstrating proper service of process by a preponderance of the evidence"]). “When a process server ‘cannot be compelled with due diligence to attend’ the traverse hearing, the process server’s affidavit of service can satisfy the plaintiff’s evidentiary burden.” (Eros Intern. PLC v. Partners, 2019 N.Y. Slip Op. 33461 [U], 1 [Sup Ct, New York County 2019], affd sub nom. Eros Intl. PLC v. Mangrove Partners, 191 AD3d 464 [1st Dept 2021]. Pursuant to CPLR 4531, “[a]n affidavit by a person who served, posted or affixed a notice, showing such serving, posting or affixing, is prima facie evidence of the service, posting or affixing if the affiant is dead, mentally ill or cannot be compelled with due diligence to attend the trial.” If the affidavit is admitted at the hearing and thereby deemed prima facie evidence of service, the allegations contained in the affidavit can be rebutted by the defendant (see Boudreau v. Ivanov, 154 AD2d 638 [2d Dept 1989]; Carlino v. Cook, 126 AD2d 597 [2d Dept 1987]. Here, Plaintiff failed to present any testimony or any admissible evidence whatsoever to establish that the process server could not, with due diligence, be compelled to attend the hearing. Rather, counsel for Plaintiff merely stated to the Court the efforts that were made by him and the law firm to locate the process server. Accordingly, there is insufficient evidence in admissible form “to establish that [the] process server could not with due diligence be compelled to attend the hearing” (Williams v. St. John’s Episcopal Hosp., 173 AD3d 1117, 1119 [2d Dept 2019]. Thus, the affidavit of service is not admissible into evidence and the Plaintiff failed to meet its burden of demonstrating that that jurisdiction over the Defendant was obtained by proper service of process (Williams, 173 AD3d at 1119). In any event, even if the Court were to admit the affidavit of service into evidence, the Court would nevertheless find that the Plaintiff has not met its burden. In this regard, the Court finds that both defendants testified credibly as to their presence in Washington D.C. at the time of the alleged service. Indeed, each of the defendant’s testimony is supported by ample evidence in the form of photographs and documentary evidence, that supports their claim. Conclusion The Court finds that the Plaintiff failed to prove by a preponderance of evidence that jurisdiction over defendant Arlene Mendez was obtained by proper service. All other arguments made by Plaintiff relating to the validity of service are denied. Accordingly, it is hereby ORDERED that the order of reference and judgment of foreclosure and sale are vacated, and this matter is dismissed as against defendant Arlene Mendez. This constitutes the Decision and Order of the Court. Dated: July 31, 2024
