Preview
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
EXHIBIT J
EXHIBIT J
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
Nassau County
Maureen OConnell
County Clerk
63 2019 00218593
Ref ID#: IN 14--004097 instrument 2019-
Number: 00218593
As
C31 - SHORT FORM ORDER
Recorded On: November 14, 2019
Parties: MTGLQ INVESTORS L P
TO PEARL MAYERS Num Of Pages:
Recorded By: COURT Comment:
** **
Examined and Charged as Follows:
C31 - SHORT FORM ORDER 0.00
Recording Charge: 0.00
** **
THIS PAGE IS PART OF THE INSTRUMENT
I hereby certifythat the withinand foregoing was recorded inthe Clerk's Office For: Nassau County, NY
File Information: Record and Return To:
Document Number: 2019- 00218593
Receipt Number: 1673936
Recorded Date/Time: November 14, 2019 03:27:49P
Book-Vol/Pg:
Cashier / Station: O AKK / NCCL-JCQWBP1
County Clerk AUtaureen O'Connell
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
FORECLOSURE PART
NASSAU COUNTY
PRESENT: HON. THOMAS A. ADAMS,
Supreme Court Justice
X
MTGLQ INVESTORS, L.P.,
INDEX NO.: 4097/14
Plaintiff(s),
Motion Seq. No.: 5
- against - Motion Date: 9/27/19
PEARL MAYERS, et al.,
Defendant(s).
X
ll
Motion by Pearl Mayers (defendant) for an order pursuant to CPLR 5015(a)(3) or
(a)(4) vacating the default judgment of foreclosure and sale, the Order of Reference, and
the orders permitting plaintiff extensions of time to serve process based upon significant
material misrepresentations of fact; pursuant to CPLR 321l(a)(8) dismissing this action
against the defendant; and synctioning plaintiff in an amount of $7,500 as the costs for this
Order to Show Cause for its deceitful misrepresentations of fact under the guise of due
diligence is denied.
In the within foreclosure action, defendant bases her application for relief on CPLR
5015 that states:
¼
Relief from judgment or order
(a) On Motion. The court which rendered a judgment or order may
relieve a party from itupon such terms as may be just, on motion of
interested person with such notice as the court may direct, upon
any
the ground of:
3. fraud, misrepresentation, or other misconduct of an adverse party; or
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
4. lack of jurisdiction to render the judgment or order.
Defendant failed to rebut plaintiff's prima facie proof of effective service to
warrant vacating the default judgment for lack of personal jurisdiction. The copy of the
summons and complaint (see Affidavit of Rosemary A. LaManna sworn to December 10,
2014), Certificate of Merit, and RPAPL § 1303 Notice were mailed to defendant, Pearl
Mayers at 230 Rutland Road, Freeport, New York on August 6, 2014 (see Roseboro v
Roseboro, 131 AD2d 557). Defendant does not deny that prior to service of the summons
and complaint, and up to the present, 230 Rutland Road, Freeport, New York is her
residence. Plaintiff established prima facie its right to service of publication (LaManna
Affidavit) (see PHH Mtg. Corp. v Mericy, 135 AD3d 725, 272). Plaintiff's agent (Manna
Affidavit) testified due diligence was used to verify defendant's mailing address. La
Manna verified the address with the U.S. Post Office at Freeport 1150; Department of
Motor Vehicles of New York, and Nassau County Board of Elections. The summons and
"undelivered."
complaint mailed to the subject premises were never returned as being
Prior to service publication, plaintiff's agents made almost 20 visits to the
seeking by
subject premises in addition to a of the summons and complaint to the
mailing copy
subject premises.
Plaintiff also submits an affidavit sworn to 27, 2014, John Downs, licensed
May by
process server. Mr. Downs states that
On 21, 2014 at 3:33 PM, deponent served the within SUMMONS
May
AND COMPLAINT; CERTIFICATE OF MERIT; 1303 NOTICE-Help
for Homeowners in Foreclosure and bold fourteen-point type and
notice printed in twenty-
printed on colored paper, and the title to the
point type in compliance with RPAPL Section 1303, bearing Index No.
14-004097 and date of filing of April 24, 2014 on PEARL MAYERS
at 230 RUTLAND ROAD, FREEPORT, NEW YORK 11520 in the
manner indicated below:
AFFIXED TO DOOR: a true of each to the door of said
By taping copy
which is defendant's place of residence within the state.
premises,
2
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
Deponent was unable, with due diligence, to find defendant or a
person of suitable age and discretion.
5/2/14 @ 5:43 PM; 5/5/14 @ 4:01PM; 5/7/14 @ 10:17 AM;
5/16/14 @ 12:11 PM; 5/19/14 @ 3:21 PM; 5/21/19 @ 3:3,3 PM;
WHITE AND GLASS DOOR, LAST KNOWN ADDRESS.
On 05/22/2014, deponent enclosed a copy of above mentioned
documents to PEARL MAYERS at said defendant's actual place
of residence, at 230 RUTLAND ROAD, FREEPORT, NY,
11590 in a first-class postpaid properly addressed envelope not
indicating that the mailing was from an attorney or concerned
Confidential"
legal action and marked "Personal and in an
official depository under the exclusive care and custody of the
United States Post Office.
Plaintiffhas established by credible documentary evidence to have acquired jurisdiction
over defendant (see CPLR 3211(a)(8). The facts in the within action are similar to those in
2"d
Wells Fargo v Patel, __ Dept__ (Sept. 11, 2019) 2019 NY Slip Op [U] 6532, 2019 NY
App Div Lexis 6541; 2019 WL 4281730 where the Appellate Division Second Department
stated:
Contrary to the defendant's contention, she failed to demonstrate
that the Supreme Court lacked personal jurisdiction over her based
upon service by publication (see CPLR 5015[a][4]). "CPLR 308(5)
provides that service ofprocess upon a natural person may be
effected in such manner as the court, upon motion without notice,
directs, if service is impracticable under paragraphs one, two and
four of this section[,] which provide for service by personal delivery,
delivery and mail, and nail and mail respectively". Whether service is
impracticable "depends on the facts and circumstances surrounding
case."
each To be entitled to relief pursuant to CPLR 308(5), a
plaintiff need not satisfy the more stringent standard of due diligence
required under CPLR 308(4). Here, the court providently exercised its
discretion in directing service by publication as an alternative method
for service of process upon the defendant.
Additionally, the defendant was not entitled to discretionary
vacatur pursuant to CPLR 5015(a)(1) as she failed to demonstrate
3
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022
a reasonable excuse for her default (internal citations omitted).
Defendant offers not one iota of proof to meet her burden of establishing fraud,
misrepresentation, or other misconduct on the part of the plaintiff that warrants vacatur of
the Judgment of Foreclosure and Sale pursuant to CPLR 5015(a)(3).
The Order to Show Cause dated September 16, 2019 is vacated.
Plaintiff is directed to proceed with the foreclosure sale forthwith.
This decision is the Order of the court.
ENTER:
Dated:
Hon. Th 5 nas A. Adams
J. S. C.
ENTERED
NOV 1 2 2019
NASSAU COUNTY
COUNTY CLERK'S OFFICE
. 4
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014
NYSCEF DOC. NO. 28 t RECEIVED NYSCEF: 11/10/2022
COUNTY NASSAU
NOV
NASSAU
I
2
FILED
INDEX
CLERK'S #
2019
COUNTY
OFFICE
Preview
FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 EXHIBIT J EXHIBIT J FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 Nassau County Maureen OConnell County Clerk 63 2019 00218593 Ref ID#: IN 14--004097 instrument 2019- Number: 00218593 As C31 - SHORT FORM ORDER Recorded On: November 14, 2019 Parties: MTGLQ INVESTORS L P TO PEARL MAYERS Num Of Pages: Recorded By: COURT Comment: ** ** Examined and Charged as Follows: C31 - SHORT FORM ORDER 0.00 Recording Charge: 0.00 ** ** THIS PAGE IS PART OF THE INSTRUMENT I hereby certifythat the withinand foregoing was recorded inthe Clerk's Office For: Nassau County, NY File Information: Record and Return To: Document Number: 2019- 00218593 Receipt Number: 1673936 Recorded Date/Time: November 14, 2019 03:27:49P Book-Vol/Pg: Cashier / Station: O AKK / NCCL-JCQWBP1 County Clerk AUtaureen O'Connell FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK FORECLOSURE PART NASSAU COUNTY PRESENT: HON. THOMAS A. ADAMS, Supreme Court Justice X MTGLQ INVESTORS, L.P., INDEX NO.: 4097/14 Plaintiff(s), Motion Seq. No.: 5 - against - Motion Date: 9/27/19 PEARL MAYERS, et al., Defendant(s). X ll Motion by Pearl Mayers (defendant) for an order pursuant to CPLR 5015(a)(3) or (a)(4) vacating the default judgment of foreclosure and sale, the Order of Reference, and the orders permitting plaintiff extensions of time to serve process based upon significant material misrepresentations of fact; pursuant to CPLR 321l(a)(8) dismissing this action against the defendant; and synctioning plaintiff in an amount of $7,500 as the costs for this Order to Show Cause for its deceitful misrepresentations of fact under the guise of due diligence is denied. In the within foreclosure action, defendant bases her application for relief on CPLR 5015 that states: ¼ Relief from judgment or order (a) On Motion. The court which rendered a judgment or order may relieve a party from itupon such terms as may be just, on motion of interested person with such notice as the court may direct, upon any the ground of: 3. fraud, misrepresentation, or other misconduct of an adverse party; or FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 4. lack of jurisdiction to render the judgment or order. Defendant failed to rebut plaintiff's prima facie proof of effective service to warrant vacating the default judgment for lack of personal jurisdiction. The copy of the summons and complaint (see Affidavit of Rosemary A. LaManna sworn to December 10, 2014), Certificate of Merit, and RPAPL § 1303 Notice were mailed to defendant, Pearl Mayers at 230 Rutland Road, Freeport, New York on August 6, 2014 (see Roseboro v Roseboro, 131 AD2d 557). Defendant does not deny that prior to service of the summons and complaint, and up to the present, 230 Rutland Road, Freeport, New York is her residence. Plaintiff established prima facie its right to service of publication (LaManna Affidavit) (see PHH Mtg. Corp. v Mericy, 135 AD3d 725, 272). Plaintiff's agent (Manna Affidavit) testified due diligence was used to verify defendant's mailing address. La Manna verified the address with the U.S. Post Office at Freeport 1150; Department of Motor Vehicles of New York, and Nassau County Board of Elections. The summons and "undelivered." complaint mailed to the subject premises were never returned as being Prior to service publication, plaintiff's agents made almost 20 visits to the seeking by subject premises in addition to a of the summons and complaint to the mailing copy subject premises. Plaintiff also submits an affidavit sworn to 27, 2014, John Downs, licensed May by process server. Mr. Downs states that On 21, 2014 at 3:33 PM, deponent served the within SUMMONS May AND COMPLAINT; CERTIFICATE OF MERIT; 1303 NOTICE-Help for Homeowners in Foreclosure and bold fourteen-point type and notice printed in twenty- printed on colored paper, and the title to the point type in compliance with RPAPL Section 1303, bearing Index No. 14-004097 and date of filing of April 24, 2014 on PEARL MAYERS at 230 RUTLAND ROAD, FREEPORT, NEW YORK 11520 in the manner indicated below: AFFIXED TO DOOR: a true of each to the door of said By taping copy which is defendant's place of residence within the state. premises, 2 FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 Deponent was unable, with due diligence, to find defendant or a person of suitable age and discretion. 5/2/14 @ 5:43 PM; 5/5/14 @ 4:01PM; 5/7/14 @ 10:17 AM; 5/16/14 @ 12:11 PM; 5/19/14 @ 3:21 PM; 5/21/19 @ 3:3,3 PM; WHITE AND GLASS DOOR, LAST KNOWN ADDRESS. On 05/22/2014, deponent enclosed a copy of above mentioned documents to PEARL MAYERS at said defendant's actual place of residence, at 230 RUTLAND ROAD, FREEPORT, NY, 11590 in a first-class postpaid properly addressed envelope not indicating that the mailing was from an attorney or concerned Confidential" legal action and marked "Personal and in an official depository under the exclusive care and custody of the United States Post Office. Plaintiffhas established by credible documentary evidence to have acquired jurisdiction over defendant (see CPLR 3211(a)(8). The facts in the within action are similar to those in 2"d Wells Fargo v Patel, __ Dept__ (Sept. 11, 2019) 2019 NY Slip Op [U] 6532, 2019 NY App Div Lexis 6541; 2019 WL 4281730 where the Appellate Division Second Department stated: Contrary to the defendant's contention, she failed to demonstrate that the Supreme Court lacked personal jurisdiction over her based upon service by publication (see CPLR 5015[a][4]). "CPLR 308(5) provides that service ofprocess upon a natural person may be effected in such manner as the court, upon motion without notice, directs, if service is impracticable under paragraphs one, two and four of this section[,] which provide for service by personal delivery, delivery and mail, and nail and mail respectively". Whether service is impracticable "depends on the facts and circumstances surrounding case." each To be entitled to relief pursuant to CPLR 308(5), a plaintiff need not satisfy the more stringent standard of due diligence required under CPLR 308(4). Here, the court providently exercised its discretion in directing service by publication as an alternative method for service of process upon the defendant. Additionally, the defendant was not entitled to discretionary vacatur pursuant to CPLR 5015(a)(1) as she failed to demonstrate 3 FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 11/10/2022 a reasonable excuse for her default (internal citations omitted). Defendant offers not one iota of proof to meet her burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff that warrants vacatur of the Judgment of Foreclosure and Sale pursuant to CPLR 5015(a)(3). The Order to Show Cause dated September 16, 2019 is vacated. Plaintiff is directed to proceed with the foreclosure sale forthwith. This decision is the Order of the court. ENTER: Dated: Hon. Th 5 nas A. Adams J. S. C. ENTERED NOV 1 2 2019 NASSAU COUNTY COUNTY CLERK'S OFFICE . 4 FILED: NASSAU COUNTY CLERK 11/10/2022 04:40 PM INDEX NO. 004097/2014 NYSCEF DOC. NO. 28 t RECEIVED NYSCEF: 11/10/2022 COUNTY NASSAU NOV NASSAU I 2 FILED INDEX CLERK'S # 2019 COUNTY OFFICE