The Estate of Marjorie Colwell moved for an Order dismissing the foreclosure complaint pursuant to the Civil Practice Law and Rules Sec. 3211 and setting aside the mortgage now filed against the real property located at 1293 Park Place, Brooklyn. The plaintiff opposed the motion. In responsive papers, the movant offered an affidavit from defendant Sonia Gaines who alleges that she was never served in the foreclosure action. Accordingly, pursuant to the terms of an Interim Order dated March 24,2010, this matter was set down for a traverse before me.

On April 25, 2010, a traverse in this matter was held. At that time, the plaintiff presented testimony from James Reap, a process server who works for Callahan attorneys in New Jersey. Mr. Reap testified that pursuant to New Jersey law, he does not have to have a process server license in order to serve process.

The Court deemed exhibit 1 a copy of the summons and complaint. Mr. Reap testified that he went to 7 Ridge Avenue, Paterson, New Jersey 6 or 7 times and knocked on the black and white door, but no one answered his knock. He testified that on several occasions he left a card asking Ms. Gaines to call him at his office but he never received any word from her. Subsequently, he served the summons and complaint by conspicuous place service on July 29, 2008 and mailed a copy of the papers on July 29, 2008. On cross-examination, Mr. Reap was confronted with the affidavit of service that he signed which alleged that he served the papers at "7 Ridge Ter, Parterson, NJ 07514". Mr. Reap confirmed that the affidavit of service contained errors but he testified that he did not complete the affidavit, he simply signed it. He also testified that he did not prepare the document for mailing but he did deposit the envelope in the mailbox. [*2]Mr. Reap was shown a copy of the affidavit of service and then changed his testimony to assert that the mailing of the summons and complaint occurred on July 30, 2008. Mr. Reap further testified that the only address at which he served legal papers on Ms. Gaines was in New Jersey. Mr. Reap acknowledged that he does not keep a log book nor is he required to keep one pursuant to New Jersey law.

Mr. Reap was then questioned as to whether the documents he served by conspicuous place service contained a notice pursuant to the Real Property Actions and proceedings Law Sec 1303 which provides:

1) the foreclosing party in a mortgage foreclosure action shall provide notice to the mortgagor in accordance with the provisions of this section with regard to information and assistance about the foreclosure process.

2)The notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action. The notice required by this section shall be in bold, fourteen point type and shall be printed on colored paper that is other than the color of the summons and complaint and the titled of the notice shall be in bold, twenty-point type. The notice shall be on its own page.

The notice shall be designated as follows "Help for Homeowners in Foreclosure".

Mr. Reap was questioned by the attorneys as to whether or not this notice was contained in the papers served by conspicuous place service. His recollection was that he wasn't sure. He did remember that there was a different colored paper attached to the summons and complaint but he believed it was on the back of the papers and contained the name of the attorneys.

Plaintiff also presented the testimony of Jeffrey Cantor who works at Enterprise Process Service and is an investigator. Mr. Cantor testified that his firm was retained to locate Sonia Gaines. He performed a "skip trace" search used by creditors and inputting Ms. Gaines social security number into the computer on one of the many web sites established to locate persons. The address given for Ms. Gains was 1293 Park Place, Brooklyn, New York. Upon inputting further information into the computer, an alternate address of 7 Ridge Terrace, Patterson New Jersey was revealed.

The Court notes that no affidavit of service or attempted service was submitted showing any effort to serve Ms. Gaines at 1293 Park Place, Brooklyn, New York. The only affidavit of service submitted for that address sets forth that Marjorie Colwell was served on July 12, 2008 at 1293 Park Place and Philip Towns was served on July 12, 2008 by service on Ms. Colwell as a person of suitable age and discretion. However, the Court takes judicial notice of the fact that Ms. Marjorie Colwell died on November 8, 2004, almost four years before she was "served".

Ms. Sonia Gaines then testified that from July 14, 2008 through September 30, 2008, she lived at 1293 Park Place and had lived there for 12 years. She put into evidence a New York State I. D. Card which was issued on August 31,1999 and expired on September 27, 2003 which listed her address as 1293 Park Place, Brooklyn. Also exhibited to the Court was a New York State address card, issued on January 3, 2005 and which expired on September 27, 2009 which also set forth her address at 1293 Park Avenue. Ms. Gaines testified that she doesn't live at 7 Ridge Terrace but that in October, 2008, she moved to New Jersey to be closer to her son and daughter-in-law. Ms. Gaines showed recent letters from her pension fund to establish that her address is 25 East 40th Street, Paterson, [*3]

New Jersey 07514. Ms. Gaines also testified that the front door at 7 Ridge Terrace where some members of her family live, is the color of reddish- maroon door.

After hearing all of the testimony, the Court determines that traverse has been sustained and the action is dismissed. The plaintiff has failed to prove that a proper summons, verified complaint and RPAPL Sec 1303 notice were served on the defendant Sonia Gaines at her address in order for the Court to obtain jurisdiction over this defendant. The process server may have left some papers for Ms. Gaines at 7 Ridge Terrace, but he did not establish that all of the necessary papers, including a verified complaint and the RPAPL Sec. 1303 notice were properly served at that address. ( See WMC Mortg. Corp. v. Thompson, 24 M3d. 738)

Further, it was not established to the Court's satisfaction 7 Ridge Terrace is the dwelling place of Ms. Gaines. Lastly, although the plaintiff was aware that Ms. Gaines address was 1293 Park Place, Brooklyn, New York, it has failed to establish that any effort was made to serve her at her home. Argent Mort. Co. v. Vlahos, 66 AD3d. 721

Accordingly, traverse is sustained and the proceeding is dismissed for lack of proper service.

This constitutes the amended decision and Order of the Court.

Enter:

_________________________

LAURA L. JACOBSON, JSC.