Wilmington PT Corp. v. Parker

Filing 33

ORDER granting 27 and granting in part and denying in part 22 : Defendant's motion is granted to the extent that the Clerk of Court is directed to vacate the judgment of foreclosure and sale, as well as the Clerk's certificate of default , and to reopen this case; Defendant's motion is otherwise denied. Plaintiff's motion for an extension of time to serve the summons and complaint is granted and the time to serve Defendant is extended to and including October 31, 2021. See attached Memorandum & Order. Ordered by Judge Denis R. Hurley on 9/9/2021. (Gapinski, Michele)

Case 2:19-cv-02380-DRH-AKT Document 33 Filed 09/09/21 Page 1 of 9 PageID #: 640

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
WILMINGTON PT CORP.,
-against-

MEMORANDUM & ORDER
19-CV-2380 (DRH)(AKT)

Plaintiff,

GARY PARKER,
Defendant.
-----------------------------------------------------------X
APPEARANCES:
For Plaintiff:
Hasbani & Light, P.C.
450 Seventh Avenue, suite 1408
New York, New York 10123
By: Danielle Paula Light, Esq.
For Defendant:
Young law Group, PLLC
80 Orville Drive, suite 100
Bohemia, New York 11716
HURLEY, Senior District Judge:
Presently before the Court are two motions. The first motion is by Defendant
seeking vacatur of the default judgment entered against him pursuant to Fed. R.
Civ. P. 60(b) and dismissal of the action pursuant to Fed. R. Civ. P. 12(b)2) and (5).
The second is a motion by Plaintiff pursuant to Fed. R. Civ. 4(m) for additional time
to serve defendant. For the reasons set forth below, Defendant's motion is granted
to the extent that the default judgment of foreclosure and sale is vacated and
Plaintiff's motion is granted.

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BACKGROUND
Plaintiff Wilmington PT Corp. (“Wilmington” or "Plaintiff") commenced this
action pursuant to New York Real Property Actions and Proceedings Law
(“RPAPL”) § 1301 et seq. against Defendant Gary Parker (“Parker” or "Defendant")
to foreclose on a mortgage encumbering 42 Roundtree Drive, Melville, NY 11747
(District: 0400, Section 272.00, Block: 1.00, Lot: 62.00 (the “Property”). (DE 1.).
According to the affidavit of service, Defendant was served by delivering a copy of
the summons and complaint on "Eileen Linder, Co-Occupant, a person of suitable
age and discretion" at the Property, "[D]efendant's place of residence." Further, the
documents were then mailed to him at the Property (DE 8.) After a certificate of
default was issued by the Clerk of Court (DE 10), Plaintiff moved for a default
judgment. (DE 11.) The motion was served on Defendant by regular mail addressed
to him at the Property. (DE 11-7.) By Order dated April 8, 2020, the Court adopted
the Report and Recommendation of Judge Tomlinson that the motion be granted as
to liability, but that further documentation be submitted with reference to damages.
(DE 13.) After a further submission by Plaintiff, Judge Tomlinson issued a Report
and Recommendation that Plaintiff's motion for a judgment of foreclosure and sale
be granted and Plaintiff awarded damages as specified therein. (DE 16.) That
Report and Recommendation was served on Defendant by regular mail addressed to
him at the Property. (DE 17.) By Order dated March 12, 2021, the Court adopted
the Report and Recommendation in full (DE 18) and entered a judgment of
foreclosure and sale (DE 19).

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By letter dated April 28, 2021, Plaintiff advised the Court that on April 27,
2021 it had received a hardship declaration from Parker pursuant to the COVID-19
Emergency Eviction and Foreclosure Prevention Act of 2020. The letter further
stated that the sale of the property was currently scheduled for May 4, 2021, three
days after the expiration of the imposed stay ending on May 1, 2021. (DE 21.)
On May 3, 2021 Defendant filed a proposed Order to Show Cause seeking a
temporary restraining order against the sale, vacatur of the judgment of foreclosure
and sale and upon vacatur, dismissal of the action. In support thereof, Defendant
submitted an affidavit stating that since March 2017 he has resided in Westchester
County at 160B Heritage Hills, Somers, New York, together with supporting
documentation. The Court scheduled oral argument on the application for May 4,
2021. By letter filed on May 3, 2021, Plaintiff advised the Court that they agreed to
cancel the sale scheduled for May 4, 2021 and requesting that Defendant's proposed
Order to Show Cause go through the normal briefing schedule as there was no
longer a threat of imminent harm.
The hearing on the Order to Show Cause proceed on May 4, 2021. At that
hearing, the Court declined to sign the Order to Show Cause given that Plaintiff
agreed not to proceed with the foreclose sale pending the resolution of Defendant's
Rule 60 motion, directed Defendant to provide Plaintiff with either a copy of his
driver's license in effect at the time the complaint was filed or an abstract from the
Department of Motor Vehicles setting forth Defendant's address as listed on his

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license in April 2019, and set a briefing schedule tied to the timing of Defendant's
production of his license or the DMV abstract.
Later that day, on May 4, 2021, Defendant filed copy of his driver's license in
effect as of the filing date of the complaint listing his home address as 160B
Heritage Hills, Somers, New York.
On May 11, 2021, Plaintiff filed a motion pursuant to Fed. R. Civ. P. 4 for an
extension of time to serve Defendant. Defendant opposes the motion.
DISCUSSION
I.

Defendant's Rule 60(b) Motion
A.

Applicable Standard

Federal Rule of Civil Procedure 60(b) provides that
The court may relieve a party . . . from a final judgment, order,
or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule
50(b);
(3) fraud . . . , misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b).
B.

Defendant's Motion to Vacate the Judgment is Granted

Here, Defendant relies on Rule 60(b)(4), asserting that the judgment is void
because he was not properly served with the summons and complaint as the
Property is not his usual place of abode or dwelling place.
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Rule 4(e) of the Federal Rules of Civil Procedure provides that an individual
may be served by "leaving a copy [of the summons and complaint] at the
individual's dwelling or usual place of abode with someone of suitable and age and
discretion who resides there." Fed. R. Civ. P. 4(e)(2)(B). A person may have more
than one dwelling place or place of abode, "[b]ut for a location to qualify, it must
contain 'sufficient indicia of permanence.'" Chen v. WMK 89th Street LLC,
2020 WL 2571010, * 8 (S.D.N.Y. May 20, 2020) (quoting Nat'l Dev. Co. v. Triad
Holding Corp., 930 F.2d 253, 257 (2 Cir. 1991).1 Sufficient indicia of permanence
includes whether the party being served maintains a living space on the property,
as well as listing the address on one's driver's license or otherwise representing the
address as one's own. Chen, 2020 WL 2571010 at * 8 (citing cases).
Having received a copy of Defendant's driver's license in effect at the time
this action was commenced, Plaintiff has not disputed Defendant's assertion that
the Property is not his dwelling place or usual place of abode. Given that concession,
service was not properly made upon the Defendant.
"A judgment is void for lack of personal jurisdiction over the defendant where
service of process was not properly effected. Nor can actual notice of suit cure a
failure to comply with the statutory requirements for serving process." Sartor v.

Thus, the terms usual place of abode and dwelling are not synonymous with
residency. See. e.g., Jaffe and Asher v. Van Brunt, 158 F.R.D. 278, 280 (S.D.N.Y.
1994) (then-District Judge Sotomayor determined that service on a defendant who
ordinarily resided in California but had been served at his parent's house in New
York was proper, because the defendant “stay[ed] at that address when he [was] in
the area, maintain[ed] a private bedroom, clothes, and a phone line at the address,”
and “receive[d] mail” there.)
1

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Toussaint, 79 F. App'x 1, 13 (2d Cir. 2002) (internal citations omitted). "A default
judgment entered against a defendant should be vacated as void under Rule 60(b)(4)
if service on defendant was defective." Restoration Hardware, Inc. v. Lighting
Design Wholesalers, Inc. 2020 WL 7093592, *3 (S.D.N.Y. Dec. 4, 2020 (brackets
omitted) (quoting Tuqui Tuqui Dominicana, S.R.L. v. Castillo, 2020 WL 1689763, at
*2 (S.D.N.Y. Apr. 7, 2020).)
As service was not properly made, the judgment is void and Defendant's
motion to vacate the judgment is granted.2
II.

Plaintiff's Motion for Extension of Time to Serve the Complaint

A.

Applicable Standard

Rule 4(m) of the Federal Rules of Civil Procedure provides, in pertinent part,
as follows:
If a defendant is not served within 90 days after the complaint is filed,
the court – on motion or on its own after notice to the plaintiff – must
dismiss that action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service
for an appropriate period.
Fed. R. Civ. P. 4(m).
A plaintiff bears the burden of proof of demonstrating that it had good cause
for not timely serving the defendant. See Fed. R. Civ. P. 4(m); Mason Tenders
District Council Pension Fund v. Messera, 1997 WL 221200, at *3 (S.D.N.Y. April 1,

Defendant also seeks dismissal of the complaint pursuant to Fed. R. Civ. P.
12(b)(2) (lack of personal jurisdiction) and 12 (b)(5) (insufficient service of process).
For the reasons set forth in the next section, the Rule 12(b) portion of defendant's
motion is denied, and Plaintiff is granted an extension of time to serve process.
2

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1997). “In determining whether a plaintiff has shown good cause, courts weigh the
plaintiff's reasonable efforts and diligence against the prejudice to the defendant
resulting from the delay.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 66
(S.D.N.Y. 2010) (citations omitted). That is, “[c]ourts generally consider three
factors . . . (1) whether the delay resulted from inadvertence or whether a
reasonable effort to effect service has occurred, (2) prejudice to the defendant, and
(3) whether the plaintiff has moved for an extension of time to serve.” Nicholas v.
Bratton, 2018 WL 1054567, at *1 (S.D.N.Y. Feb. 23, 2018) (citation omitted)
"[E]ven if a plaintiff cannot establish good cause, Rule 4(m) allows the Court,
in its discretion, to extend the time for service. See Zapata v. City of N.Y., 502 F.3d
192, 193 (2d Cir. 2007) (“[D]istrict courts may exercise their discretion to grant
extensions under Rule 4(m) absent a showing of good cause under certain
circumstances . . . .”). In determining whether a discretionary extension is
warranted, the court may consider: “(1) whether any applicable statute of
limitations would bar the action once refiled; (2) whether the defendant had actual
notice of the claims asserted in the complaint; (3) whether [the] defendant had
attempted to conceal the defect in service; and (4) whether [the] defendant would be
prejudiced by extending [the] plaintiff's time for service.” DeLuca, 695 F. Supp. 2d
at 66 (citations omitted).
B.

Plaintiff's Motion is Granted

According to the affidavit of service filed by the process server, process was
served on one Eileen Linder, who identified herself as a co-occupant and who was of

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suitable age and discretion, confirmed that Defendant lived at the Property, and
even acknowledged service by signing for the documents. While Linder has now
submitted an affidavit stating she told the process server that Defendant did not
reside at the Property, she does not deny signing for the documents.
Consideration of the three factors set forth above warrants a determination
that Plaintiff has demonstrated good cause. Based on the process server's affidavit,
Plaintiff was under a reasonable belief that its attempted service was proper.3
Moreover, there appears to be no prejudice to the defendant for the delay caused by
the extension. Finally, when presented with evidence that the property was not
Defendant's usual place of abode or dwelling place, Plaintiff promptly moved for an
extension of time to serve. Accordingly, good cause for the extension exists.
But even if good cause does not exist, it is appropriate for this Court to
exercise its discretion to grant an extension. Conspicuously absent from Defendant's
papers is how and when he learned of the instant action. Indeed Ms. Linder's
affidavit does not address what she did with the summons and complaint that were
served upon her or the other papers in this litigation that were sent to Defendant at
the Property. The absence of prejudice to Defendant also weighs heavily in favor of
the Court exercising its discretion to grant an extension.

While Defendant argues that "it is common knowledge" that certain procedures are
usually followed before serving a foreclosure complaint and that those procedures
were not followed here thus showing a lack of due diligence, he submits no evidence
to support his assertion that the alleged procedures are usually followed. (See Def.'s
Mem. in Opp. (DE 31) at 4-5.)
3

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Plaintiff's motion is granted and the time to serve Defendant is extended to
and including October 31, 2021. In the event there is a foreclosure moratorium in
effect in New York which prevents service, Plaintiff may move for a further
extension on or before October 31, 2021.
CONCLUSION
For the reasons set forth above, Defendant's motion is granted to the extent
that the Clerk of Court is directed to vacate the judgment of foreclosure and sale, as
well as the Clerk's certificate of default, and to reopen this case; Defendant's motion
is otherwise denied. Plaintiff's motion for an extension of time to serve the
summons and complaint is granted and the time to serve Defendant is extended to
and including October 31, 2021.
Dated: Central Islip, New York
September 10, 2021

s/ Denis R. Hurley
Denis R. Hurley
United States District Judge

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