In this foreclosure action commenced October 2, 2009, plaintiff Federal National Mortgage Association seeks an order, among other things, granting judgment by default against defendants Rogers Realty & Management Corp. and Abraham Hoffman. Those Defendants cross-move "to Dismiss Plaintiff's Complaint and Vacate their default . . . pursuant to CPLR 3211 (a) (8)." (Notice of Cross Motion dated May 26, 2010.) [*2]

Although not stated in Plaintiff's Notice of Motion or its counsel's Affirmation, Plaintiff's motion is deemed made pursuant to CPLR 3215 (f). (See HSBC Bank USA, N.A. v Betts, 67 AD3d 735, 736 [2d Dept 2009].) Plaintiff must submit "proof of the facts constituting the claim, the default and the amount due" (see CPLR 3215 [f]), establishing its prima facie case against the defendants against whom the judgment is sought (see State of New York v Williams, 44 AD3d 1149, 1152-53 [3d Dept 2007]; Green v Dolphy Construction Co., Inc., 187 AD3d 635, 637 [2d Dept 1992]; Silberstein v Presbyterian Hosp. in the City of NY, 96 AD2d 1096, 1096 [2d Dept 1983]; see also Litvinskiy v May Entertainment Group, 44 AD3d 627, 627 [2d Dept 2007] ["viable cause of action"].)

Although not stated in Defendants' Notice of Cross Motion or the supporting Attorney's Affirmation, their motion to "vacate their default" is deemed made pursuant to CPLR 5015 (a) (4), based upon lack of jurisdiction, consistent with their moving to dismiss pursuant to CPLR 3211 (a) (8).

According to the Complaint, Plaintiff seeks foreclosure of mortgaged premises located at 158 Rogers Avenue in Brooklyn, owned by defendant Rogers Realty & Management Corp. ("Rogers Realty"), pursuant to a Multifamily Note dated August 12, 2005 (Complaint, ¶ 12); a Consolidation, Extension and Modification Agreement dated August 12, 2005, which contains a Multifamily Mortgage, Assignment of Rents and Security Agreement (id., ¶ 13); and an Assignment of Consolidation, Extension and Modification Agreement dated August 15, 2005 (id., ¶ 14.) The Complaint alleges the liability of defendant Abraham Hoffman pursuant to an Acknowledgment and Agreement of Key Principals to Personal Liability for Exceptions to Non-Recourse Liability (id., ¶ 51.)

As reflected in Affidavits of Service included among Plaintiff's motion papers, service was purportedly made on Rogers Realty by service upon the Secretary of State pursuant to CPLR 311 (a) (1) and Business Corporation Law § 306; and on defendant Hoffman by affixation and mailing pursuant to CPLR 308 (4).)

As to defendant Hoffman, "CPLR 308 (4) authorizes nail and mail' service to be used only where personal service under CPLR 308 (1) and (2) cannot be made with due diligence'." (See County of Nassau v Letosky, 34 AD3d 414, 415 [2d Dept 2006].) "The due diligence requirement of CPLR 308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received." (Id. [quoting Gurevitch v Goodman, 269 AD2d 355, 355 (2d Dept 2000)]; see also McSorely v Spear, 50 AD3d 652, 653 [2d Dept 2008].) "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." (Id.)

Here, the Affidavit of Service recites six attempts to serve defendant Hoffman or a person of suitable age and discretion at his residence, but four of the six were "on weekdays during hours when it reasonably could have been expected that the defendant was either working or in transit to and from work." (See O'Connel v Post, 27 AD3d 630, 631 [2d Dept 2006].) More [*3]importantly, there is no indication that the process server made any "effort to determine [Mr. Hoffman's] business address in order to attempt personal service thereat pursuant to CPLR 308 (2) before resorting to nail and mail' service." (See id.; see also McSorely v Spear, 50 AD3d at 654.)

Where as here a lender has parted with in excess of $1 million at least in part on the credit of a corporation's principal and guarantor, one would expect that the lender would have a business address for the individual. Moreover, here, in a Solemn Affirmation with attached copies of e-mail communications, defendant Hoffman establishes at least prima facie that he notified Plaintiff's servicing agent of his new business address in October 2009, more than two months before attempted service. Under these circumstances, defendant Hoffman has established prima facie a lack of "due diligence," ineffective service, and a lack of jurisdiction over him.

The Reply Affirmation submitted by Plaintiff does not dispute that Plaintiff had actual knowledge of defendant Hoffman's business address, and does not suggest any reason why service was not, or could not have been, attempted at that address. Since Plaintiff has "failed to show the existence of even a factual question as to whether the process server exercised due diligence necessary to be permitted to serve someone under CPLR 308 (4)' " (see Schwartz v Margie, 62 AD3d 780, 781 [2d Dept 2009] [quoting Leviton v Unger, 56 AD3d 731, 732 (2d Dept 2008)]); there is no basis for a hearing to determine the validity of service on defendant Hoffman, and the Court may, and does, find "due diligence to be insufficient as a matter of law" (see id.)

The Court has noted Plaintiff's contention that, "[a]lthough some courts have required . . . that the process server attempt to learn the defendant's place of business before affixing and mailing, that requirement arises when the process server has failed to attempt a sufficient number of home deliveries at times when the defendant would reasonably be expected to be at home." (Reply Affirmation, ¶ 13.) Whatever validity there might be to the contention in other circumstances (see County of Nassau v Gallagher, 43 AD3d 972, 973-74 [2d Dept 2007]), in a mortgage foreclosure action a qualitative assessment of due diligence (see McSorely v Spear, 50 AD3d at 653) requires that the mortgagee attempt service at the business address for the mortgagor (or, in this case, the corporate principal and guarantor) that the mortgagee must know, or make reasonable explanation for why it has not.

As to Plaintiff's other arguments, "actual notice of the lawsuit does not cure the jurisdictional defect" (see County of Nassau v Yohannan, 34 AD3d 620, 621 [2d Dept 2006] [quoting DeShong v Marks, 144 AD2d 623, 624 (2d Dept 1988)]); and a defendant's counsel's refusal to accept service for a client does not constitute the defendant's "deliberate[ ] attempt[ ] to avoid service" (Reply Affirmation, ¶ 24), even assuming relevance to lack of due diligence.

As to defendant Rogers Realty, the Affidavit of Service is "sufficient to create a presumption that service upon the defendant was effectuated by delivery of the summons and . . . complaint to the Secretary of State," and defendant Hoffman's "mere denial of receipt" (Solemn [*4]Affirmation, ¶ 7) is "insufficient to rebut the presumption of proper service." (See Trini Realty Corp. v Fulton Ctr. LLC, 53 AD3d 479, 479-80 [2d Dept 2008].) Mr. Hoffman states that he "inadvertently failed to advise the Secretary of State" of the corporation's new address (Solemn Affirmation, ¶ 8), but that he notified Plaintiff's servicing agent of the new address more than two months before delivery of the summons and complaint to the Secretary of State (id., ¶ ¶ 5, 6.) Even undisputed, however, these facts do not undermine jurisdiction.

Defendant Rogers Realty does not expressly seek to be relieved of the consequences of its default under either CPLR 317 or CPLR 5015 (a) (1), but does so implicitly with its reliance upon H.K.A. Realty Co. v United Steel & Strip Co. (88 AD2d 612 [2d Dept 1982]; see also Eugene DiLorenzo, Inc. v A.C. Dutton Lumber Co., Inc., 67 NY2d 138 [1986]; see also Reyes v DCH Mgmt., Inc., 56 AD3d 644, 644 [2d Dept 2008]; Tselikman v Marvin Court, Inc., 33 AD3d 908, 909 [2d Dept 2006].) And Plaintiff addresses Defendant's arguments in its reply. Defendant's arguments, however, are not supported with any evidence as to when its principal, defendant Hoffman, learned of the action, or any showing of a meritorious defense (see Eugene DiLorenzo, Inc. v A.C. Dutton Lumber Co., Inc., 67 NY2d at 141; Walter v Jones, Sledzik, Garneu & Nardone, LLP, 67 AD3d 671, 672 [2d Dept 2009]; H.K.A. Realty Corp. v United Steel & Strip Corp., 88 AD3d at 613.)

Plaintiff has sufficiently established defendant Rogers Realty's default, but has not submitted sufficient "proof of the facts constituting the claim" (see CPLR 3215 [f].) The Complaint purports to allege four causes of action against Rogers Realty, designated, respectively, "Foreclosure of Real Property," "Foreclosure of Personal Property," "Rental Proceeds," and "Possession." Plaintiff's notice of motion seeks "a default judgment against the defendants on all claims" (Notice of Motion for Default Judgment and Order of Reference dated March 4, 2010), but nowhere does Plaintiff set forth any law applicable to any of its alleged causes of action, or cite to any of the allegations of the Complaint, or relate any of the material submitted as evidence in support of the law or the allegations.

In particular, the Consolidation, Extension and Modification Agreement dated August 12, 2005, which appears to be the lynchpin of all of the alleged causes of action, as well as Plaintiff's standing to maintain this action (see Affirmation of Rachel E. Kramer, Esq. in Support of Motion for Default Judgment and Order of Reference, ¶ ¶ 4, 6; Complaint, ¶ ¶ 14, 15) is not included among the papers submitted. Moreover, the Affidavit of Brad Lifford in Support of Motion for Default Judgment neither attaches nor describes the documents upon which he relies in making his assertions, nor renders the documents admissible as evidence, and he does not set forth or refer to "any evidence demonstrating [his or his employer's] authority to act on behalf of the plaintiff" (see HSBC Bank USA, N.A. v Betts, 67 AD3d at 736.)

Plaintiff's motion is, therefore, denied, with leave to renew as to defendant Rogers Realty upon papers responsive to the deficiencies noted in this opinion. [*5]

Defendants' cross-motion is granted to the extent that the Complaint as against defendant Abraham Hoffman is dismissed, and is otherwise denied. Judgment may enter accordingly.

June 18, 2010__________________

Jack M. Battaglia

Justice, Supreme Court