U.S. Bank National Ass'n v. Holmes

Appellate Division of the Supreme Court of New York

U.S. Bank National Ass'n v. Holmes

309 A.D.2d 658, 765 N.Y.S.2d 794, 2003 N.Y. App. Div. LEXIS 10964

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

DecidedOctober 23, 2003

StatusPublished

This text of 309 A.D.2d 658 (U.S. Bank National Ass'n v. Holmes) 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

U.S. Bank National Ass'n v. Holmes, 309 A.D.2d 658, 765 N.Y.S.2d 794, 2003 N.Y. App. Div. LEXIS 10964 (N.Y. Ct. App. 2003).

Pincite

Opinion

Judgment, Supreme Court, Bronx County (Kenneth Thompson, J.), entered September 6, 2001, which directed foreclosure and sale of the mortgaged property, unanimously affirmed, without costs. Subsequent orders, same court and Justice, entered on or about March 19, 2002, which denied a [659]*659stay of the foreclosure sale; on or about May 10, 2002, which, to the extent appealable, denied appellant’s motion for a traverse hearing; and on or about May 31, 2002, which denied appellant’s motion for a stay of summary proceedings and delivery of the deed to the party acquiring title at the foreclosure sale, unanimously affirmed, without costs.

There is no factual issue regarding service of the summons and complaint in the foreclosure proceeding. Whatever imprecision there may have been in the process server’s affidavit of service (e.g., misspelling of the name of the person served, and general description of his skin color) was minimal, and did not raise a jurisdictional issue warranting a traverse hearing (see Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]). Furthermore, while not controlling, we note in passing that appellant, in support of her motion for a traverse hearing, submitted only a hearsay affidavit of her own — not of her son— that the latter had never been personally served.

Any questions regarding past or present use and occupancy of the premises should be addressed to the IAS court. Concur— Saxe, J.P., Rosenberger, Friedman and Marlow, JJ.

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Judgment, Supreme Court, Bronx County (Kenneth Thompson, J.), entered September 6, 2001, which directed foreclosure and sale of the mortgaged property, unanimously affirmed, without costs. Subsequent orders, same court and Justice, entered on or about March 19, 2002, which denied a [659]*659stay of the foreclosure sale; on or about May 10, 2002, which, to the extent appealable, denied appellant’s motion for a traverse hearing; and on or about May 31, 2002, which denied appellant’s motion for a stay of summary proceedings and delivery of the deed to the party acquiring title at the foreclosure sale, unanimously affirmed, without costs.

There is no factual issue regarding service of the summons and complaint in the foreclosure proceeding. Whatever imprecision there may have been in the process server’s affidavit of service (e.g., misspelling of the name of the person served, and general description of his skin color) was minimal, and did not raise a jurisdictional issue warranting a traverse hearing (see Simmons First Natl. Bank v Mandracchia, 248 AD2d 375 [1998]). Furthermore, while not controlling, we note in passing that appellant, in support of her motion for a traverse hearing, submitted only a hearsay affidavit of her own — not of her son— that the latter had never been personally served.

Any questions regarding past or present use and occupancy of the premises should be addressed to the IAS court. Concur— Saxe, J.P., Rosenberger, Friedman and Marlow, JJ.

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Bluebook (online)

309 A.D.2d 658, 765 N.Y.S.2d 794, 2003 N.Y. App. Div. LEXIS 10964, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-bank-national-assn-v-holmes-nyappdiv-2003.

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