Today’s article relates to renewal judgments under CPLR 5014 in the face of potentially defective service of process. This BLOG has previously addressed CPLR 5014 [here]. Issues involving service of process have been addressed numerous times in this BLOG. See, e.g., [here], [here], [here], [here], [here], [here], [here], [here] and [here].
CPLR 5014
By way of brief background, and as previously discussed in this BLOG, money judgments are valid for 20 years. Money judgments recorded in a county in which the judgment debtor owns real property, however, are only liens on that real property for 10 years, CPLR § 5203(a), although CPLR § 5014 permits a judgment creditor to extend the lien of the judgment on real property for an additional 10-year period. The historical perspective of CPLR 5104 is discussed in this BLOG’s prior article: “Mind the Gap – Renewal Judgments Under CPLR § 5014.” As explained, under CPLR § 5014, as it presently stands, a judgment creditor can commence an action for a renewal judgment up to one year prior to the expiration of the original judgment so as to avoid the “lien gap” that results when a renewal judgment is entered after the expiration of the original lien. During the “gap” period, other lienors, particularly mortgagees, can “slip in” and gain priority over a judgment creditor awaiting a renewal judgment after the expiration of the original judgment.
Service of Process
As previously noted in our BLOG, for a court to exercise personal jurisdiction over a defendant in a litigation, among other things, the defendant must be served with process. The failure to serve process in “strict compliance” with the “statutory methods,” “leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.” Nationstar Mortgage, LLC v. Gayle, 191 A.D.3d 1002 (2nd Dep’t 2021) (citations omitted).
“Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308.” Federal Nat. Mort. Ass’n v. Smith, 219 A.D.3d 938, 941-42 (2nd Dep’t 2023) (citations and internal quotation marks omitted, hyperlink added); see also Castillo-Florez v. Charlecius, 220 A.D.3d 1, 2 (2nd Dep’t 2023) (citations omitted). “Typically, a defendant who is otherwise subject to a court’s jurisdiction, may seek dismissal based on the claim that service was not properly effectuated.” Keane v. Kamin, 94 N.Y.2d 263, 265 (1999) (citations omitted).
One method of personal service is “affix and mail” service pursuant to CPLR 308(4), which provides that where personal service upon a natural person “cannot be made with due diligence” under paragraphs one and two of CPLR 308, service can be made by, inter alia, affixing the summons to the door of the defendant’s “dwelling place or usual place of abode within the state”. It has been noted that the due diligence requirements of CPLR 308(4) must be “strictly observed because there is a reduced likelihood that a defendant will actually receive the summons when it is served pursuant to CPLR 308(4).” Serraro v. Staropoli, 94 A.D.3d 1083, 1084 (2nd Dep’t 2012) (citations and internal quotation marks omitted); see also Coley v. Gonzalez, 170 A.D.3d 1107, 1108 (2nd Dep’t 2019) (citations and internal quotation marks omitted). “What constitutes due diligence is determined on a case-by-case basis, focusing not on the quantity of the attempts at personal delivery, but on their quality.” McSorley v. Spear, 50 A.D.3d 652, 653 (2nd Dep’t 2008) (citation omitted); see also Faruk v. Dawn, 162 A.D.3d 744, 745 (2nd Dep’t 2018) (same). As part of the diligence process, process servers must make “genuine inquiries about the defendant’s whereabouts and places of employment.” Faruk, 162 A.D.3d at 745-46; see also Serraro, 94 A.D.3d at 1085. Finally, service will not be sustained when all attempts are made at times when the defendant will not likely be home or when working or commuting to work. See Serraro, 94 A.D.3d at 1085; McSorely, 50 A.D.3d at 653-54.
A “process server’s affidavit of service gives rise to a presumption of proper service.” Deutsche Bank National Trust Co. v. Stolzberg, 165 A.D.3d 624, 625 (2nd Dep’t 2018) (citations and internal quotation marks omitted). Further, while “[b]are and unsubstantiated denials are insufficient to rebut the presumption,” “a sworn denial containing a detailed and specific contradiction of the allegations in the process server’s affidavit will defeat the presumption of proper service.” Id. (citations, internal quotation marks and brackets omitted). For example, the Second Department, in Castillo-Florez, held that the defendant’s affidavit “in which he, inter alia, denied receipt of service, denied residing at the [service] address at the time service allegedly was made, and set forth the location of his address at the time of service,” was sufficient to rebut the presumption of service. Castillo-Florez, 220 A.D.3d at 14 (citations omitted); see also Bank of America v. Lewis, 190 A.D.3d 910, 915 (2nd Dep’t 2021) (finding the presumption rebutted where defendant averred that he did not reside at the service address and annexed to his affidavit copies of tax records indicating he lived elsewhere).
Legal Servicing, LLC v. Carty
On July 10, 2024, the Appellate Division, Second Department, decided Legal Servicing, LLC v. Carty, a case that addresses CPLR § 5014 and service of process. In 2006, the Legal Servicing Plaintiff obtained a clerk’s Judgment against the defendant based on the defendant’s default in responding to the complaint. See CPLR § 3215(a). In 2015, the Plaintiff commenced an action for a renewal judgment, which was granted, again, based on the defendant’s failure to respond to the complaint.
The defendant subsequently moved to vacate the original judgment and the renewal judgment, which motion was denied by the motion court. On the defendant’s appeal, the Second Department reversed.
In reaching its decision, the Court recognized that the “failure to serve process in an action leaves the court without personal jurisdiction over the defendant, thereby rendering all subsequent proceedings null and void.” (Citation omitted.) In Legal Servicing, service of process on the defendant was made by “affix and mail” service pursuant to CPLR § 308(4) in both the original action and in the subsequent action for a renewal judgment. The Court found that although the process server’s affidavit was prima facie evidence of proper service, the defendant “raised questions of fact as to whether affix and mail service was properly made in both actions.” For example, with respect to the original action, the defendant denied receipt of process, which was affixed to one of the two entrances of a two-family residence and the affidavit of service did not specify to which entrance process was affixed.
As to service of process in the renewal action, the defendant denied receiving service and averred that he did not reside at the subject premises at the time of the alleged service. While no documentary evidence of his residency was submitted, the defendant’s wife submitted an affidavit averring that the couple was not living at the subject premises at the time of service because they moved closer to the defendant’s place of business to “ease [his] commute to work.” The Court also rejected the plaintiff’s argument that service was made at the defendant’s address on file with the New York State DMV. Consistent with recent caselaw, the Court found that this fact alone was insufficient to sustain service where there was no deliberate attempt to avoid service and warrant an estoppel preventing a challenge to the “propriety of service at a former address.” (Citation omitted.) [Eds. Note: recent caselaw clarifying the law on service of process, updating DMV records and estoppel has been addressed in this BLOG.
The Court found that the defendant successfully rebutted the presumption of proper service occasioned by the process server’s affidavit and, accordingly, concluded that “a hearing to determine the validity of service upon the defendant in the underlying action and, if necessary, in this action was warranted.” (Citations omitted.)
