ORDERED that this motion (#001) by defendant, Robert Piercey, for an order vacating his default in answering pursuant to "CPLR 317" or "CPLR 5015", is considered thereunder and is denied; and it is further

ORDERED that the cross motion (#002) by the plaintiff for an order of reference upon default and other incidental relief is considered under RPAPL § 1321 and CPLR 3215 and is granted.

The plaintiff commenced this action on April 9, 2012 to foreclose a December 16, 2006 mortgage given by defendant Robert Piercey's decedent, Denise M. Piercey, to secure a note likewise executed by the decedent. Defendant Robert Piercey was joined, in his capacity as Executor of the Estate of the deceased mortgagor, as a party defendant to this action by service of the summons, complaint and RPAPL 1303 notice, pursuant to CPLR 308(2) by delivery thereof to "Jane" Piercey, a "relative" at the mortgaged premises in Coram New York. Defendant Piercey defaulted in answering the summons and complaint.

Upon the processing of the Request for Judicial Intervention in January of 2013, a conference of the type contemplated by CPLR 3408 was scheduled by court personnel assigned to the specialized mortgage conference part for March 19, 2013, notwithstanding that this action did not qualify for such conference since the premises were not mortgagor occupied (see CPLR 3408[a]). The court issued notice scheduling the conference for February 6, 2013 was mailed to defendant Piercey at the mortgaged premises. Defendant Piercey admits receipt thereof and claims that such notice was the impetus for the retention of his current counsel and his filing of a notice of appearance as such on February 22, 2013 with the court. Notwithstanding such appearance, defendant Piercey defaulted in appearing at the March 19, 2013 conference. Following such default, the conference was so marked and the action was assigned to the case inventory of this court.

Defendant Piercey now moves by notice of motion dated April 9, 2013, for an order pursuant to CPLR 317 vacating his default in answering on the statutory grounds that he did not receive notice of this action in time to defend and has one or more meritorious defenses including improper service of process (see Notice of Motion relief demand numbered 1, ¶¶ 14-17 of the affirmation of defense counsel in support of motion). Alternatively, defendant Piercey seeks a vacatur of his default pursuant to CPLR "5015" upon the grounds of "excusable default and possible misconduct of the plaintiff in serving defendant Piercey and that defendant Piercey has a meritorious defense" (see [*2]Notice of Motion, relief demand numbered 2). In this regard, the court notes that in the moving papers, both Piercey and his defense counsel offer alleged improprieties and defects in the place of service of process as a reasonable excuse for defendant Piercey's default, as he allegedly had no notice or knowledge of this action until he received a copy of the court issued settlement conference notice in February of 2013 (see ¶ 4 of Piercey"s affidavit in support of motion).

Upon the grant of relief under CPLR 317 or 5015(a)(1), defendant Piercey asks that he be granted leave to serve a late answer twenty days after service of a copy granting same with notice of its entry (see Notice of Motion, relief demand numbered 3). Notwithstanding this request for leave to serve a late answer and defend on the merits, defendant Piercey seeks an immediate dismissal of the complaint pursuant to CPLR 3211(a)(7) upon grounds of legal insufficiency (see id., demand numbered 4). Finally, defendant Piercey seeks an order pursuant to CLR 2201 "enjoining and restraining the plaintiff, its attorneys, agents, designees, marshals, sheriffs" from enforcing any judgment (see id., demand numbered 5).

The plaintiff opposes the motion on various grounds and cross moves for an order of reference upon the default of all defendants together with deletion of the unknown defendants as parties and an amendment of the caption to reflect same. Plaintiff's opposition to the defendant's motion includes claims that defendant Piercey waived all personal jurisdictional defenses in February of 2013, when his counsel filed the February 20, 2013 notice of appearance without any reservation of jurisdictional defenses.

According to defendant Piercey, service of the notice of appearance by his counsel was prompted by Piercey's receipt of the February 6, 2013 CPLR 3408 settlement conference notice that was mailed to him at the mortgaged premises by court personnel (see Exhibit D and ¶ 4 of Piercey's affidavit in support of motion). Upon his retention, Piercey's counsel ascertained that defendant Piercey was listed in the court's electronic filing system as a "pro se" defendant (see id.). Defense counsel then began a dialogue with plaintiff's counsel in an attempt to gain its consent to service of late answer and to secure an adjournment of the conference via a stipulation of counsel (see ¶¶ 5-10 of the affirmation of defense counsel in support of motion; compare ¶ 14 of counsel's affirmation in opposition and in further support of motion). Neither of these undertakings were successful, as no answer was served and the conference scheduled for March 19, 2013 was held as scheduled and marked "default" upon the non-appearance of defendant Piercey.

Defendant Piercey opposes the plaintiff's cross motion on several grounds which challenge the plaintiff's proof and the timeliness of its motion. By way of reply, defendant Piercey expands his noticed demands for relief to include dismissal of the complaint upon a purported lack of personal jurisdiction pursuant to CPLR 3211(a)(8) (see ¶ 24 of defense counsel's affirmation in opposition plaintiff's cross motion and in reply to defendant's motion) and/or to open up his default in answering pursuant to CPLR 5015(a)(4) (see id., ¶¶ 26-27). He also submits a proposed answer in apparent support of his demand for leave to file a late answer in order to appear herein and defend on the merits. For the reasons stated, the motion (#001) by defendant Piercey is denied while the cross motion (#002) by the plaintiff for an order of reference on default is granted. [*3]

First considered are the noticed demands by defendant Piercey for a vacatur of his default relief pursuant to CPLR 5015(a)(1) and the purported expansion thereof in his reply papers to include demands for such relief pursuant CPLR 5015(a)(4). Unfortunately, relief under any of the subparagraphs of CPLR 5015(a) is not available to defendant Piercey since applications therefor must be made "upon such notice as the court may direct" (CPLR 5015[a]). Interposition of a notice of motion under this statute must thus be made by submission of an order to show cause in which the court will direct the method and manner and service. The instant motion was interposed by service of notice of motion rather than by order to show cause. The court was thus deprived of a means to fulfill its statutory obligation to direct the method and manner of notice of the defendant's application. A denial of this application on this procedural ground, alone, is warranted since the failure to move by order to show cause has been held to divest the court of jurisdiction to entertain the application (see Smith v Smith, 291 AD2d 828, 736 NYS2d 557 [4th Dept 2002]).

In any event, defendant Piercey's claim for either a dismissal of the complaint pursuant to CPLR 3211(a)(8) or an order relieving him of his default on the grounds of improper and/or defective service pursuant to CPLR 5015(a)(4) are without merit. Relief pursuant to CPLR 3211(a)(8) is not available since the application therefor is untimely (see CPLR 3211[a];[e]; U.S. Bank Natl. Ass'n v Gonzalez, 99 AD3d 694, 952 NYS2d 59 [2d Dept 2012]; Deutsche Bank Trust Co. Am. v Stathakis, 90 AD3d 983, 935 NYS2d 651 [2d Dept 2011]). Nor is it available to defendant Piercey under CPLR 5015(a)(4), albeit for different reasons. Although defendant Piercey asserts in his supporting affidavit allegations that he was residing in Brooklyn rather than at the mortgaged premises at the time service was effected upon him pursuant to CPLR 308(2) in April of 2012, these allegations are unsubstantiated as no documentation or affidavits by others was submitted (see Chichester v Alal-Amin Grocery & Halal Meat, 100 AD3d 820, 954 NYS2d 577 [2d Dept 2012]; cf., Dime Sav. Bank of Williamsburg v 146 Ross Realty, 106 AD3d 863, 966 NYS2d 443 [2d Dept 2013]). The affidavit of defendant Piercey is thus insufficient to rebut the prima facie showing of due service that arises from the allegations set forth in the affidavit of the plaintiff's process server and insufficient to require a hearing on the issue of service. Neither a dismissal of the complaint pursuant to CPLR 5015(a)(4), nor a vacatur of Piercey's default in answering and the granting of leave to answer and defend on the merits, is warranted (see e.g. Equicredit Corp. of Am. v Campbell, 73 AD3d 1119, 900 NYS2d 907 [2d Dept 2010]; Ramirez v Romualdo, 25 AD3d 680, 808 NYS2d 733 [2d Dept 2006]).

Rejected as unmeritorious is the plaintiff's contention that the filing of the notice of appearance, which contained no reservation of any rights or defenses, constituted a waiver on the part of defendant Piercey of all in personam jurisdictional defenses. In general, an appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him or her and thus confers personal jurisdiction over such defendant, unless he or she asserts an objection to jurisdiction either by way of motion or in his or her answer (see CPLR 320; Countrywide Home Loans Serv., LP v Albert, 78 AD3d 983, 912 NYS2d 96 [2d Dept 2010]; Ohio Sav. Bank v Munsey, 34 AD3d 659, 826 NYS2d 321 [2d Dept 2006]; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 801 NYS2d 331[2d Dept 2005). To avoid the conferral of personal jurisdiction over a defendant who first appears in the action by a notice of appearance, such [*4]defendant must have the right to file either a pre-answer motion to dismiss or an answer. In other words, the notice of appearance must be filed prior to the expiration of the time within which a pre-answer motion or answer must be filed for it to constitute a conferral of personal jurisdiction. Where the notice of appearance is filed after the expiration of the time within which one must move to dismiss an answer in which the jurisdiction is asserted, an appearance by service of a notice of appearance does not confer personal jurisdiction over the defendant (see Kraus Bros. v L.V. Hoffman & Co., Inc.,99 AD2d 401, 470 NYS2d 1 [1st Dept 1984]). Instead, service of such a notice after a default in answering has occurred merely entitles the defendant to notice of all subsequent proceedings in the action (see Martine v Lowenstein, 68 NY 456 [1877]; 36 North Water, Inc. v Mark Caliper, Inc., 295 AD2d 499, 744 NYS2d 454 [2d Dept 2002]; Home Sav. Bank v Chiola, 203 AD2d 525, 611 NYS2d 235 [2d Dept 1994]). Since service of the notice of appearance by counsel for defendant Piercey was effected well after his default in answering occurred, such service did not confer personal jurisdiction over him nor effect a waiver of his right to open up his default on any ground available to him.

The moving defendant's demands for a vacatur of his default in answering pursuant to CPLR 5015(a)(1) are considered thereunder and denied. Aside from the lack of a judicially directed method of notice outlined above and the absence of any order or judgment fixing the defendant's default at the time of interposition of his motion, this application which rests upon "excusable default" grounds is lacking in substantive merit. It is well settled law that applications to vacate defaults or default judgments must be premised upon a reasonable excuse for the default and a meritorious defense to the claims against the movant (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890, 909 NYS2d 642 [2d Dept 2010], quoting Lipp v Port Auth. of NY & N.J., 34 AD3d 649, 649, 824 NYS2d 671 [2d Dept 2006]; see also Midfirst Bank v Al—Rahman, 81 AD3d 797, 917 NYS2d 871 [2d Dept 2011]; Karalis v New Dimensions HR, Inc, 105 AD3d 707, 962 NYS2d 647 [2d Dept 2013]). This standard governs applications made on grounds of excusable default that are interposed both prior and subsequent to a formal fixation of a default on the part of the defendants by the court pursuant to CPLR 5015(a)(1) or 3012(d) (see Bank of New York v Espejo, 92 AD3d 707, 939 NYS2d 105 [2d Dept 2012]; Integon Natl. Ins. Co. v Norterile, 88 AD3d 654, 930 NYS2d 260 [2d Dept 2011]; Ennis v Lema, 305 AD2d 632, 760 NYS2d 197 [2d Dept 2003]).

Where the only excuse offered is an unsuccessful claim that service was defective, a reasonable excuse is not demonstrated (see Citimortgage, Inc. v Bustamante, 107 AD3d 752, 2013 WL 2495907

[2d Dept 2013]; Bank of New York v Samuels, 107 AD3d 653, 2013 WL 2420719 [2d Dept 2013]; ACT Prop., LLC v Ana Garcia, 102 AD3d 712, 957 NYS2d 884 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, 957 NYS2d 868 [2d Dept 2012]; Reich v Redley, 96 AD3d 1038, 947 NYS2d 564 [2d Dept 2012]). Under such circumstances, the court need not ascertain whether the moving defendant is possessed of a meritorious defense to the claims interposed against him (see Bank of America, N.A. v Gowrie, 106 AD3d 677, 963 NYS2d 878 [2d Dept2013]; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, supra; U.S. Bank N.A. v Stewart, 97 AD3d 740, 948 NYS2d 411 [2d Dept 2012]; Reich v Redley, 96 AD3d 1038, supra). [*5]

Here, the sole excuse proffered by defendant Piercey for his default in answering was the purported impropriety of service, a claim which was not successfully established by defendant Piercey in his submissions to the court. Under these circumstances, the court denies all relief demanded pursuant to CPLR 5015 (a)(1) without consideration of defendant Piercey's possession of meritorious defenses (see Citimortgage, Inc. v Bustamante, 107 AD3d 752, supra; Bank of America, N.A. v Gowrie, 106 AD3d 677, supra; Deutsche Bank Natl. Trust Co. v Pietranico, 102 AD3d 724, supra).

Next considered is defendant Piercey's claim for a vacatur of his default under CPLR 317. This statute affords a defendant not served by delivery in hand pursuant to CPLR 308(1) with an excusable default ground, namely, the non-receipt of personal notice of the summons in time to defend (see CPLR 317). As in the case of other excusable default grounds, the moving defendant must demonstrate his or her possession of a meritorious defense to the claims asserted (see CPLR 317; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 501 NYS2d 8 [1986]). Due proof of the claimed non-receipt of personal notice of the summons in time to defend is required (see Essex Credit Corp. v Theodore Tarantini, 179 AD2d 973, 579 NYS2d 235 [3d Dept 1992]), as a mere denial of receipt and/or an unsubstantiated claim of lack of service of the summons and complaint are insufficient to establish a lack of personal notice of the action in time to defend (see Bank of New York v Samuels, 107 AD3d 653, supra; Stevens v Charles, 102 AD3d 763, supra; Act Prop., LLC v Garcia, 102 AD3d 712, supra; Hildago v Cruiser Taxi Corp., 101 AD3d 950, 957 NYS2d 222 [2d Dept 2012]; Wassertheil v Elburg, LLC, 94 AD3d 753, 941 NYS2d 679 [2d Dept 2012]).

Here, there is no denial by defendant Piercey of receipt of a copy of the summons from anyone, including the person identified as the relative named "Jane" Piercey in the affidavit of the process server to whom the summons, complaint and RPAPL 1303 notice were delivered at the mortgaged premises. The only denial of service by defendant Piercey is that he was not "personally served with the Summons, the Complaint or the Notice of Foreclosure relative to this matter"(see ¶ 3 of defendant Piercey's affidavit in support of motion). While Piercey claims to have first learned of this action in February of 2013, upon his receipt of a copy of the court issued notice of the scheduling of the conference that was mailed to him at the mortgaged premises (see id., ¶ 4), this unsubstantiated claim does not establish lack of personal receipt of notice of the summons and complaint in time to defend. Guided by the above cited case authorities and upon its review of the facts set forth in the record, this court finds that such allegations are insufficient to warrant the granting of relief under CPLR 317. In addition, the moving papers did not include defendant Piercey's possession of any bona fide defenses to the plaintiff's claims for foreclosure and sale as the only defense offered in the moving papers was the unsuccessful claim of a lack of due service of process. The inclusion of an unverified proposed answer in the defendant Piercey's reply papers replete with numerous affirmative defenses is unavailing since it was not verified by defendant Piercey and was not accompanied by an affidavit of merit as to the asserted defenses (see Karalis v New Dimensions HR, Inc, 105 AD3d 707, supra). Defendant Piercey's demands for a vacatur of his default pursuant to CPLR 317 and leave to serve an answer in the form of the one attached to the reply papers is thus denied. [*6]

The remaining demands for relief included in defendant Piercey's moving papers including his demand for dismissal of the complaint pursuant to CPLR 3211(a)(7) and all new demands set forth in his reply papers, have been considered by the court and are denied as lacking in merit. Defendant Piercey's motion (#001) is thus denied in its entirety.

Next considered is the plaintiff's cross motion (#002) for an order fixing the defaults in answering of all defendants, the deletion of the unknown defendants and a caption amendment to reflect same and the appointment of a referee to compute amounts due under the subject mortgage. Entitlement to such relief is available to a foreclosing plaintiff pursuant to RPAPL 1321 and CPLR 3215 upon a showing of 1) the joinder of the targeted defendants by service of process; 2) a default by such defendants in answering the process served; and 3) facts constituting cognizable claims for foreclosure and sale and such other relief incidental thereto as may be requested (see Woodson v Mendon Leasing, 100 NY2d 62, 71, 760 NYS2d 727 [2003]; Green Tree Servicing, LLC v Cary, 106 AD3d 691, 965 NYS2d 511 [2d Dept 2013]; Dupps v Betancourt, 99 AD3d 855, 855, 952 NYS2d 585 [2d Dept 2013]; LIUS Group Intern. Endwell, LLC v HFS Intern., Inc., 92 AD3d 918, 939 NYS2d 525 [2d Dept 2012]). Here, the plaintiff's moving papers sufficiently demonstrated service of the summons and complaint upon the known defendants, their defaults in answering and the facts constituting the claims for foreclosure and sale and other incidental relief sought in the complaint.

In general, a party in default may only oppose a motion for a default judgment upon such defendant's showing of a reasonable excuse for the default and possession of a meritorious defense (see Karalis v New Dimensions HR, Inc., 105 AD3d 707, supra; Triangle Prop. 2, LLC v Narang, 73 AD3d 1030, 903 NYS2d 424 [2d Dept 2010]; see also Wassertheil v Elburg, LLC, 94 AD3d 753, 941 NYS2d 679 [2d Dept 2012]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 789, 921 NYS2d 643 [2d Dept 2011]; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Exceptions to this general rule are found in cases in which the defendant opposing the motion for a default demonstrates a jurisdictional infirmity that vitiates the defendant's default (see Dime Sav. Bank of Williamsburg v 146 Ross Realty, 106 AD3d 863, 966 NYS2d 443 [2d Dept 2013]; Toyota Motor Credit Corp. v Hardware Lam, 93 AD3d 713, 939 NYS2d 869 [2d Dept 2012]; Harkless v Reid, 23 AD3d 622, 622, 806 NYS2d 214 [2d Dept 2005]), or where the plaintiff's entitlement to the default judgment sought has been lost by an abandonment of its claim within the contemplation of CPLR 3215(c) (see Giglio v NTIMP, Inc., 86 AD3d 301, 307, 926 NYS2d 546 [2d Dept 2011]).

Because defendant Piercey failed to establish a jurisdictional defense that would vitiate his default or a reasonable excuse for such default and his possession of a meritorious defense, all of his asserted challenges to the plaintiff's entitlement to the requested order of reference that are premised upon purported procedural defects and/or a lack of substantive sufficiency in the plaintiff's offer of proof of its claims and its purported failure to join an indispensable party are rejected without consideration of the merits thereof. Also rejected are the defendant's claims that the plaintiff abandoned its claims under CPLR 3215(c) by failing to move for a default judgment within one year of the default, as the plaintiff demonstrated in reply papers that its motion was interposed within one year of the default (see Tarrytown Professional Ctr., Inc. v Family of Medicine of Tarrytown and [*7]Ossining, LLP., 93 AD3d 712, 939 NYS2d 868 [2d Dept 2012]). The plaintiff is thus entitled to an order fixing the defaults of the defendants served in answering, the deletion of the unknown defendants as parties and an amendment of the captions to reflect same and the appointment of a referee to compute amounts due under the subject mortgage, as requested in its cross motion.

In view of the foregoing, the motion (#001) by defendant Piercey to vacate his default and other relief is denied while the plaintiff's motion (#002) for an order of reference upon default together with other incidental relief is granted. The proposed order of reference submitted by the plaintiff, as modified by the court, has been signed simultaneously upon the issuance of this memo decision and order.

DATED: ____________________________________________

THOMAS F. WHELAN, J.S.C.