In an August 18, 2011 decision by Justice Pines the court ordered a hearing to determine whether the defendant was properly served in this mortgage foreclosure action. The defendant made two prior unsuccessful motions to vacate the judgment against him (the first was denied because he failed to properly serve plaintiff and the second was denied because he failed to show a reasonable excuse for his failure to appear and a meritorious defense). Defendant’s third attempt to vacate his default was made under CPLR 5015(4) which does not require a showing of a meritorious defense. Defendant’s affidavit rebutted the process server’s affidavit of service because it contained specific reasons why service of process was improper; namely that he did not live at the address used by the process server and the person who allegedly accepted service was 13 years old at the time (and therefore wasn’t a person of suitable age and discretion). The court ordered a hearing to determine if there was good service, which was to be held before the Suffolk County Commercial Division’s “Principal Court Attorney” who was to act as a “Special Referee” to “hear and determine whether personal jurisdiction was obtained over the defendant.”
Citibank NA v Jerome, Sup Ct, Suffolk Count, August 18, 2011, Pines, J, Index No 119149-2007.