Preview
FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024
SUPREME COURT: STATE OF NEW YORK
COUNTY OF NASSAU
PRESEN’
HON, JEFFREY A. GOODSTEIN,
A.T.8.c,
PART 31
EMIGRANT BANK, SUCCESSOR BY MERGER WITH
EMIGRANT SAVINGS BANK-LONG ISLAND, Index No. 610162/2023
Plaintiff,
Sequence No.: ooL
~ against -
DECISION & ORDER
SEYMOUR COHEN, THE BOARD OF DIRECTORS
OF BROADHOLLOW HOMEOWNERS ASSOCIATION,
ET AL.,
Defendant (s) .
The following papers were read on this motion:
Notice of Motion, Affidavit and Affirmation in Support, and Exhibits.,..1
Affidavit of Diligence, and Exhibits Bice e cera secs ern ee te eeresensetss
Upon the foregoing paps rs
rs, Emigrant Savings Bank's (*Plaintifé")
motion for an Order {1) extending <
Plaintiff’ s time to personally serve
Serymour Cohen ("De fen
fer idant”) pursuant to CPLR §306-b, and (2) directing
alter tive service on D ndant pursuant to CPLR § 398(8), either {a}
service on Defendant’s counsel since personal service on :£fendant is :
impractica: Le and counsel remains active in this praceeding an
Defendant's behalf, or (b) via publication, is determined as set forth
here nafter
On August 27, 2016, De ndant executed a lote and Mortgage in the
am: unt of $2,160,000, secured by real property lo ated at ii Evans Drive
in Brookville, New York. The Note and Mortgage were delivered to
aint 's 2 cessor 4 interest, Emigrant Savings Bank of Long
Island, and became the holder of the Note following the merger.
Defendant defaulted on the terms of the Note and e@ by ng
mai the payment due and owing on September Lt 2017.
Plaintiff Filed an act ¢ to fo close on et mortgage on July 3
i 3,
2018 {Baigrant Savings Bank v Cohen Nassau County Index No.
1 of 3
FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024
*
609593/ ae2 he After motion prac e incl appeals, the pa reies
LOL
signed a stipulation discontinuing the ion on January $3, 2623.
Plaintiff then commenced the instant action by ng the Summons
and Complaint in the County Clerk's Office on June 27, 2023 Plaintiff
was able to effect ser Loe on August 25 2023, by personally serv. g an
individual at 11 Evans Drive who identified herself as Defendant's wife,
a person of suitable age and discretion. In addition, a copy of the
Summons and Complai was L a to nef.
Def endant Following this servi ce,
Defendant appeared in the act
ac b. on via an Answer that was uploaded to the
New York State Electronic Filing System on October 25, 2023. Defendant
asserted as his Fourth Affirmative Defen se that. he was not properly
served w ith the pleadings and that therefore the Court had no
jurisdict over him,
Pl
As a Yesulf of = is assertion, intife renewed its efforts to
personally serve Defendant, retaining a second process server ta e ffaack
service. However, these effort s were ultimately unavail ng. Plaint.
states that Defendant repeatedly refuses to answi do of his
premises and that the process server atte P ted service on De da: on
seven different occa sions between duly fe 2023 and October 5 23.
During the final attempt to serve Defendant, the ess
proc ess servi was met
hy the police, who threatened him with arrest he returned to the area.
Plain now seeks ro have this Court extend its t to personally
serve Defendant and to direct ser vice al her by m cation ox on
on
Defendant's attor , The endant hae nok filed ary OF dei
che first instance, th Cc mart met. ag that Def dant is at th
very least, aware of this action, in that he has Elied an Answer.
Pursuant to CPLR §320, however, since Defendant has asserted personal
urisdiction as an affirmative defense, he has entered a mited
appearance in
this action (CPLR § 2320[b]) Plain ff has presented no
evidence toa thi an Co art
ert to ESt th t Di ndant‘’s counsel authorized
to accept process as D
service of 7g8 agent, this Court may
not make that presun; oti
ped on where ath attorney k enter 3.5 ao ols te
appearance ta cor st jurisdic on ove
av a. Defendant .
No theless, Plaintiff shown that Defendant has repeatedly
evaded service cf process Undex these eire anges, an extension of
2
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FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024
time for P tiff te effectuate service is warranted. The Cou: 2xr o notes
that Plain tif
tif f stated in its motion papers that its 126-day window to
serve Defendant expired on October 27, 2023, Plaintiff’s motion was 3
in adv e of that date, and Flai ££ should be held harmless for the
Court’s delays in resolving this motion. Accordingly, Plaintiff’s time
to serve defendant is extended, nunc pro tune, £rom October 27, 2023 to
99 days after the dat. of entry of this Order. Plaintiff£ is also
directed to serve Defendant via publica on pursuant to CPLR §§ 308(5}
and 315.
Accordingly, it hereby
ORDERED , that PL ti ff's request to exten its time to serve the
Defendant i s GRANTED; and it is #y er
ORDERED, that Plaintiff must serve the Defendant hin 30 days
after the entry of this Decision and Order; and it is further
ORDERED, that the Plaintiff's request to serve ktt e Defendant by
Publication is GRANTED. Publication shall be in
in two (2) newspapers, at
least one of which shall be in the English language, to wit Newsday and
the Oyster Bay Herald, 2 Endo Blvd, Garden City, NY, 11830, published
and distributed in the County of Nassau, and State of New York, most
likely to give notice to the defendant, once a week for four (4)
consecutive weeks.
This constitutes the decision and order of the Court.
DATED: Minecla, New York
March 20, 2024
ENTER:
df. Sef
=
pee sec
ss
i
ENTERED
Mar
22 2024
NASSAU COUNTY
COUNTY CLERK'S OFFICE
3 of 3
Preview
FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024 SUPREME COURT: STATE OF NEW YORK COUNTY OF NASSAU PRESEN’ HON, JEFFREY A. GOODSTEIN, A.T.8.c, PART 31 EMIGRANT BANK, SUCCESSOR BY MERGER WITH EMIGRANT SAVINGS BANK-LONG ISLAND, Index No. 610162/2023 Plaintiff, Sequence No.: ooL ~ against - DECISION & ORDER SEYMOUR COHEN, THE BOARD OF DIRECTORS OF BROADHOLLOW HOMEOWNERS ASSOCIATION, ET AL., Defendant (s) . The following papers were read on this motion: Notice of Motion, Affidavit and Affirmation in Support, and Exhibits.,..1 Affidavit of Diligence, and Exhibits Bice e cera secs ern ee te eeresensetss Upon the foregoing paps rs rs, Emigrant Savings Bank's (*Plaintifé") motion for an Order {1) extending < Plaintiff’ s time to personally serve Serymour Cohen ("De fen fer idant”) pursuant to CPLR §306-b, and (2) directing alter tive service on D ndant pursuant to CPLR § 398(8), either {a} service on Defendant’s counsel since personal service on :£fendant is : impractica: Le and counsel remains active in this praceeding an Defendant's behalf, or (b) via publication, is determined as set forth here nafter On August 27, 2016, De ndant executed a lote and Mortgage in the am: unt of $2,160,000, secured by real property lo ated at ii Evans Drive in Brookville, New York. The Note and Mortgage were delivered to aint 's 2 cessor 4 interest, Emigrant Savings Bank of Long Island, and became the holder of the Note following the merger. Defendant defaulted on the terms of the Note and e@ by ng mai the payment due and owing on September Lt 2017. Plaintiff Filed an act ¢ to fo close on et mortgage on July 3 i 3, 2018 {Baigrant Savings Bank v Cohen Nassau County Index No. 1 of 3 FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024 * 609593/ ae2 he After motion prac e incl appeals, the pa reies LOL signed a stipulation discontinuing the ion on January $3, 2623. Plaintiff then commenced the instant action by ng the Summons and Complaint in the County Clerk's Office on June 27, 2023 Plaintiff was able to effect ser Loe on August 25 2023, by personally serv. g an individual at 11 Evans Drive who identified herself as Defendant's wife, a person of suitable age and discretion. In addition, a copy of the Summons and Complai was L a to nef. Def endant Following this servi ce, Defendant appeared in the act ac b. on via an Answer that was uploaded to the New York State Electronic Filing System on October 25, 2023. Defendant asserted as his Fourth Affirmative Defen se that. he was not properly served w ith the pleadings and that therefore the Court had no jurisdict over him, Pl As a Yesulf of = is assertion, intife renewed its efforts to personally serve Defendant, retaining a second process server ta e ffaack service. However, these effort s were ultimately unavail ng. Plaint. states that Defendant repeatedly refuses to answi do of his premises and that the process server atte P ted service on De da: on seven different occa sions between duly fe 2023 and October 5 23. During the final attempt to serve Defendant, the ess proc ess servi was met hy the police, who threatened him with arrest he returned to the area. Plain now seeks ro have this Court extend its t to personally serve Defendant and to direct ser vice al her by m cation ox on on Defendant's attor , The endant hae nok filed ary OF dei che first instance, th Cc mart met. ag that Def dant is at th very least, aware of this action, in that he has Elied an Answer. Pursuant to CPLR §320, however, since Defendant has asserted personal urisdiction as an affirmative defense, he has entered a mited appearance in this action (CPLR § 2320[b]) Plain ff has presented no evidence toa thi an Co art ert to ESt th t Di ndant‘’s counsel authorized to accept process as D service of 7g8 agent, this Court may not make that presun; oti ped on where ath attorney k enter 3.5 ao ols te appearance ta cor st jurisdic on ove av a. Defendant . No theless, Plaintiff shown that Defendant has repeatedly evaded service cf process Undex these eire anges, an extension of 2 2 of 3 FILED: NASSAU COUNTY CLERK 0372272024 03:05 PM INDEX NO. 610162/2023 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 03/22/2024 time for P tiff te effectuate service is warranted. The Cou: 2xr o notes that Plain tif tif f stated in its motion papers that its 126-day window to serve Defendant expired on October 27, 2023, Plaintiff’s motion was 3 in adv e of that date, and Flai ££ should be held harmless for the Court’s delays in resolving this motion. Accordingly, Plaintiff’s time to serve defendant is extended, nunc pro tune, £rom October 27, 2023 to 99 days after the dat. of entry of this Order. Plaintiff£ is also directed to serve Defendant via publica on pursuant to CPLR §§ 308(5} and 315. Accordingly, it hereby ORDERED , that PL ti ff's request to exten its time to serve the Defendant i s GRANTED; and it is #y er ORDERED, that Plaintiff must serve the Defendant hin 30 days after the entry of this Decision and Order; and it is further ORDERED, that the Plaintiff's request to serve ktt e Defendant by Publication is GRANTED. Publication shall be in in two (2) newspapers, at least one of which shall be in the English language, to wit Newsday and the Oyster Bay Herald, 2 Endo Blvd, Garden City, NY, 11830, published and distributed in the County of Nassau, and State of New York, most likely to give notice to the defendant, once a week for four (4) consecutive weeks. This constitutes the decision and order of the Court. DATED: Minecla, New York March 20, 2024 ENTER: df. Sef = pee sec ss i ENTERED Mar 22 2024 NASSAU COUNTY COUNTY CLERK'S OFFICE 3 of 3