Citibank v. Harris

Appellate Division of the Supreme Court of New York

Citibank v. Harris

264 A.D.2d 377, 694 N.Y.S.2d 416, 1999 N.Y. App. Div. LEXIS 8504

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 2, 1999

StatusPublished

Cited by4 cases

This text of 264 A.D.2d 377 (Citibank v. Harris) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Citibank v. Harris, 264 A.D.2d 377, 694 N.Y.S.2d 416, 1999 N.Y. App. Div. LEXIS 8504 (N.Y. Ct. App. 1999).

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Opinion

In an action to foreclose a mortgage, the defendant Gracieuse Colon appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated May 11, 1998, which denied her motion to vacate a judgment of foreclosure and sale dated February 6, 1998.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the judgment of foreclosure and sale dated February 6, 1998, is vacated as to the appellant, the complaint is dismissed insofar as asserted against her, and the action against the remaining defendants is severed.

This Court has observed that “the ‘mailing’ requirement of CPLR 308 (subd 2) is to be strictly construed” (Booth v Lipton, 87 AD2d 856, 857; see, Matter of Gottesman, 127 AD2d 563, 564; Connell v Hayden, 83 AD2d 30, 34; cf., Feinstein v Bergner, 48 NY2d 234; Donohue v La Pierre, 99 AD2d 570). Here, the record reveals that the plaintiff’s process server mailed the summons and complaint, in purported conformity with CPLR 308 (2), to an address that was not the appellant’s last known residence. Therefore, the service was defective and the appel[378]*378lant’s motion to vacate her default must be granted (cf., Sapienza v Haag, 89 AD2d 816). Thompson, J. P., Altman, Feuerstein and Schmidt, JJ., concur.

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In an action to foreclose a mortgage, the defendant Gracieuse Colon appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated May 11, 1998, which denied her motion to vacate a judgment of foreclosure and sale dated February 6, 1998.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the judgment of foreclosure and sale dated February 6, 1998, is vacated as to the appellant, the complaint is dismissed insofar as asserted against her, and the action against the remaining defendants is severed.

This Court has observed that “the ‘mailing’ requirement of CPLR 308 (subd 2) is to be strictly construed” (Booth v Lipton, 87 AD2d 856, 857; see, Matter of Gottesman, 127 AD2d 563, 564; Connell v Hayden, 83 AD2d 30, 34; cf., Feinstein v Bergner, 48 NY2d 234; Donohue v La Pierre, 99 AD2d 570). Here, the record reveals that the plaintiff’s process server mailed the summons and complaint, in purported conformity with CPLR 308 (2), to an address that was not the appellant’s last known residence. Therefore, the service was defective and the appel[378]*378lant’s motion to vacate her default must be granted (cf., Sapienza v Haag, 89 AD2d 816). Thompson, J. P., Altman, Feuerstein and Schmidt, JJ., concur.

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Bluebook (online)

264 A.D.2d 377, 694 N.Y.S.2d 416, 1999 N.Y. App. Div. LEXIS 8504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citibank-v-harris-nyappdiv-1999.

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