The following papers numbered 1 to 3 were fully submitted on the 7th day of July, 2014.

Numbered

NATIONAL TRUST COMPANY, with Supporting Papers, and Exhibits

(dated January 27, 2014) 1

(dated May 29, 2014) 2

(dated December 6, 2011) 3

Upon the foregoing papers, plaintiff's motion for a Judgment of Foreclosure and Sale is held in abeyance pending the outcome of the traverse hearing to be held in accordance herewith.

Plaintiff commenced this foreclosure action after defendant TRACY HARDYAL (hereinafter defendant) failed to make the required payments due on a $744,000 note and mortgage executed by her on March 22, 2005 in connection with the purchase of real property located at 41 Manor Court ( more specifically, 41-49 Manor Court) on Staten Island. Defendant defaulted on the subject note on or about December 1, 2007 and has made no further payments to date. According to plaintiff, a Notice of Default was subsequently sent to defendant, and when the default remained, plaintiff exercised its right to accelerate the debt.

The within action was commenced by the filing of a summons and complaint on December 16, 2011. The affidavit of service indicates that service was made upon defendant on January 20, 2012, by affixing a copy of the summons and complaint to the door of 283 Nugent Street, defendant's last known residence, and the mailing of copies of each to defendant at the same address. Defendant has failed to answer or otherwise appear in this action, and upon her further failure to appear at a settlement conference scheduled for May 1, 2012, the case was released from the settlement conference part, and transferred to this Court to proceed with the foreclosure action.

On or about September 18, 2012, plaintiff moved for a default judgment. Defendant did not appear, and on January 31, 2013, the motion was granted and a referee was appointed to ascertain and compute the amount due. A copy of the subject note and mortgage was subsequently submitted to the referee, Maria Guastella, Esq., along with the June 28, 2012 Affidavit of Amount Due executed by Melissa Lyon, an Assistant Secretary at One West Bank, FSB, plaintiff's servicer of the subject loan. Based, inter alia, on these papers, it was determined that as of August 9, 2013, plaintiff was owed the sum of $1,080,693.77.^[FN1]

In moving to confirm the Referee's Report and for a Judgment of Foreclosure and Sale, plaintiff argues that it has been established prima facie that plaintiff had standing to maintain this action, as it is the current holder of said note and mortgage by virtue of the blank indorsement and delivery of the note to plaintiff prior to the commencement of this action. More specifically, it is alleged that the Federal Deposit Insurance Corporation, as receiver for the original mortgagee (INDYMAC BANK, FSB), assigned the subject note and mortgage to plaintiff DEUTSCHE BANK NATIONAL TRUST COMPANY in its capacity as Trustee of the [*2]INDYMAC INDX Mortgage Trust 2007-AR7, Mortgage Pass-Through Certificates, Series 2007-AR7, under a Pooling and Servicing Agreement dated April 1, 2007.^[FN2] In addition, plaintiff claims to have submitted proof by affidavit establishing defendant's default in payment, the amount due, and defendant's failure to cure. Accordingly, plaintiff maintains that it is entitled to the relief requested.

In opposition, defendant raises various issues related to the admissibility and legal sufficiency of the evidence submitted by plaintiff in support of (1) the current application, and (2) the underlying Default Judgment and Order of Reference dated January 31, 2013. In relevant part, defendant argues, inter alia, that the affidavits submitted in support of these applications were made by persons without the authority and/or a demonstrable basis for knowledge of the particular facts relevant to this action. In addition, defendant maintains that these affidavits were improperly notarized under CPLR 2309(c), and that there are significant gaps in the chain of title to the subject note and mortgage, all of which raise an issue of fact with regard to the proper vesting of title in plaintiff. Accordingly, it is argued that the entry of judgment in plaintiff's favor is precluded, and that any prior orders or judgments entered in this action must be vacated and the complaint dismissed.

Defendant also contends that this Court lacks personal jurisdiction over the defendant since she was never served with a copy of the summons and complaint. In this regard, defendant notes that the affidavit of service upon her pursuant to CPLR 308(4) indicates that a copy of the summons and complaint were mailed to defendant at 283 Nugent Street on Staten Island, which is claimed therein to be her last known residence. It is also the address of the premises to which process was affixed on January 20, 2012. However, defendant claims that her residence at the time of service was 388 Edinboro Road, rather than 283 Nugent Street. In support, defendant submits no personal affidavit, but has included an uncertified copy of her daughter's birth certificate as an exhibit to her attorney's affirmation. As therein provided, defendant's residence when her child was born on January 19, 2011 (i.e., prior to the alleged date of service), was 388 Edinboro Road. According to defendant, this indicates that plaintiff did not exercise the "due diligence" required under the CPLR to locate and properly serve a defendant in an action, and that even a simple "Google" search would have revealed her Edinboro Road address. As a result of this defect in service, defendant argues that personal jurisdiction over her person was never obtained, that the action against her is a nullity, and that the complaint must be dismissed. Defendant also argues that plaintiff failed to serve her with a copy of the proposed Order of Reference and Appointment of the Referee to Compute.

Here, it is the opinion of this Court that, while lacking an affidavit by defendant herself, the birth certificate submitted by her attorney is sufficient to warrant a hearing on the issue of proper service (see Bankers Trust Co. of Cal. v. Tsoukas, 303 AD2d 343).

It is well settled that a process server's affidavit of service constitutes prima facie evidence of the method of service described therein, giving rise to a presumption of proper service (see Matter of Romero v. Ramirez. 100 AD3d 909). However, it is equally well settled that said presumption may be rebutted by, e.g., a party's "sworn denial of receipt containing [*3]detailed and specific contradictions within the process server's affidavit" (Machovec v. Svoboda, AD3d , 2014 NY Slip Op 5960). Where this occurs, a hearing will be required at which plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence (id.; see Bank of Am. Natl. Trust & Sav. Assn. v. Herrick, 233 AD2d 351, 351-352; Frankel v. Schilling, 149 AD2d 657, 659). Accordingly, even where a defendant in such circumstances acquires actual notice of the lawsuit, said notice will not suffice to sustain the acquisition of personal jurisdiction where proof of proper service is lacking (see Macchia v. Russo, 67 NY2d 592, 595; Bank of Am. Natl. Trust & Sav. Assn. v. Herrick, 233 AD2d at 352; Frankel v. Schilling, 149 AD2d at 659).

At bar, while defendant has failed to submit a personal affidavit contesting her residence on the indicated date of service (January 20, 2012), it is the opinion of this Court that the interest of justice requires that the copy of her daughter's birth certificate submitted by counsel on her behalf is sufficient to warrant a traverse hearing. As can be gleaned from the papers presently before the Court, there are three addresses associated with this defendant, i.e, 41 Manor Road (the subject of this foreclosure action); 283 Nugent Street (the address at which service was made); and 388 Edinboro Road (the address at which defendant claims to have resided on the date of service). Thus, while the affidavit of the process server indicates that defendant was served by "nail and mail" at 283 Nugent Street, which was identified therein as defendant's residence and last known address, she has submitted, through counsel, a copy of her daughter's birth certificate indicating that on the date of the latter's birth (January 19, 2011), she was living at 388 Edinboro Road on Staten Island, a date approximately one year prior to the claimed date of service. Similarly submitted is a photocopy of defendant's social security card, which bears the same address and a similar date, January 27, 2011. Although unauthenticated, these documents may properly be considered by the court in opposition to plaintiff's motion (see Guzman v. Strab Constr Co., 228 AD2d 645; Zuilkowski v. Sentry Ins., 114 AD2d 453, 454), as "[o]ur courts have recognized that [under certain circumstances], proof which might be inadmissible at trial may, nevertheless be considered in a motion for [e.g.] summary judgment" (see Kwi Bong Li v. JNJ Supply Corp., 274 AD2d 453, 453; see also Gallo Painting, Inc. v. Aetna Ins Co., 49 AD2d 746, 747). Neither is the fact that defendant's proof "was placed before the court by way of an attorney's affirmation ... rather [an] than affidavit of fact [based] on personal knowledge", sufficient to preclude its consideration by the Court (see Olan v. Farrell Lines, 64 NY2d 1092, 1092; cf. Warrington v. Ryder Truck Rental Inc., 35 AD3d 455, 456). Where the issue of due process has been injected into a case, a heightened sense of scrutiny is appropriate and the apparent conflict in the proofs of defendant's residence at the time of service is sufficient to warrant a hearing.

In view of the foregoing, it is unnecessary to address the remaining issues raised by the parties pending the resolution of the jurisdictional question.

Accordingly, it is

ORDERED the question of personal service upon the defendant is referred to Special Referee , to hear and report with recommendations; and it is further

ORDERED that said Special Referee shall file his/her report with all due diligence; and it is further

ORDERED that if trial of the issue hereby referred is not begun within 60 days from the date of this Order, or before such later date as the Judicial Hearing Officer may fix upon good cause shown, this Order shall be cancelled and revoked, shall be remitted by the Judicial Hearing Officer to the court from which it was issued, and the matter hereby referred shall immediately be returned to the court for trial of those issues (22 NYCRR §202.43[d]); and it is further

ORDERED that the motion be held in abeyance pending the receipt of the report and recommendations of the Special Referee and motion pursuant to CPLR 4403.