Upon the following papers numbered 1 to 9 read on this motion to appoint a referee to compute and cross motion to extend time to answer; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers: 5-8; Opposing papers:9; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion (#002) by the plaintiff for, among other things, a default judgment and the appointment of a referee to compute, is withdrawn at plaintiff's request; and it is further

ORDERED that the cross motion (#003) by the defendant, Ki Lee, to dismiss the action or, in the alternative, for leave to file and serve a late answer, reschedule the settlement conferences, and permit discovery, is denied in its entirety; and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3).

This is an action for foreclosure. On May 24, 2006, defendant Ki Lee borrowed $367,000.00 from plaintiff's predecessor in interest, and executed a promissory note and mortgage. Since February 1, 2009, the defendant has failed to pay the monthly installments due and owing. This action was commenced by filing on January 28, 2015. On October 30, 2015, plaintiff submitted a motion (#001) for default judgment and the appointment of a referee to compute. On June 17, 2016, that motion was denied with leave to renew (Martin, A.J.S.C.). On August 5, 2016, defendant Ki Lee filed a notice of appearance through counsel. The matter was reassigned to this Part pursuant to Administrative Order No. 110-17, dated September 28, 2017.

On November 9, 2017, the plaintiff filed a motion (#002) for a default judgment and appointment of a referee to compute. The defendant cross moved (#003) for dismissal or, in the alternative, leave to file a late answer, reschedule the settlement conferences, and permit discovery. The plaintiff's motion (#002) was subsequently withdrawn by correspondence dated December 12, 2017. Therefore, the cross motion (#003) is the sole motion considered herein.

At the outset, the Court notes that the title of defendant's motion notes that he seeks, amongst other things, dismissal of the action. However, the defendant has failed to affirmatively provide any basis for dismissal, and makes only one fleeting mention of CPLR 3211(a)(8) in counsel's affirmation. While that branch of defendant's motion should be denied for that reason alone, the Court considers the request for dismissal based on lack of personal jurisdiction in accordance with the defendant's remaining arguments.

A "defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" (CPLR 320[a]). Additionally, pursuant to CPLR 320(b), "[a]n appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection to jurisdiction under [CPLR 3211(a)(8)] is asserted by motion or in the answer as provided in [CPLR 3211]" (CPLR 320[b]). Here, although the defendant filed his notice of appearance in August 2016, has failed to move or otherwise assert any objection to jurisdiction until over sixteen months later with the filing of the instant cross motion. Because the defendant did not timely move to dismiss on the ground of lack of jurisdiction or assert it in a responsive pleading, the defendant has waived the defense of lack of personal jurisdiction (see American Home Mtge. Serv., Inc. v Arklis, 150 AD3d 1180, 1181—82, 56 NYS3d 332 [2d Dept 2017], Countrywide Home Loans Serv., LP v Albert, 78 AD3d 983, 984, 912 NYS2d 96 [2d Dept 2010]; Ohio Sav. Bank v Munsey, 34 AD3d 659, 826 NYS2d 321 [2d Dept 2006]; Matter of Woicik v Town of E. Hampton, 207 AD2d 356, 357, 616 NYS2d 203 [1994]). The portion of the cross motion seeking dismissal pursuant to CPLR 3211(a)(8) is, therefore, denied.

The branch of the cross motion wherein the defendant seeks a vacatur of his default in answering and leave to appear herein by service of an answer pursuant to CPLR 3012(d) is also denied. To be entitled to this relief, it was incumbent upon the defendant to demonstrate "excusable default grounds" which require a showing of a reasonable excuse for the default and a demonstration of a potentially meritorious defense (see Mellon v Izmirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011], quoting, Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 921 NYS2d 643 [2d Dept 2011]; Wells Fargo Bank, N.A. v Mazzara, 124 AD3d 875, 2 NYS3d 553 [2d Dept 2015]; HSBC Bank USA, Natl. Assn. v Rotimi, 121 AD3d 855, 995 NYS3d 81[2d Dept 2014]; Mannino Dev., Inc. v Linares, 117 AD3d 995, 986 NYS2d 578 [2d Dept 2014]; Diederich v Wetzel, 112 AD3d 883, 979 NYS2d 605 [2d Dept 2013]; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784, 785, 932 NYS2d 378 [2d Dept 2011]). The material facts of the asserted meritorious defense must be advanced in an affidavit of the defendant or a proposed verified answer attached to the moving papers (see Gershman v Ahmad, 131 AD3d 1104, 16 NYS3d 836 [2d Dept 2015]; Karalis v New Dimensions HR, Inc.,105 AD3d 707, 962 NYS2d 647 [2d Dept 2013]).

Here, as noted above, the defendant appeared in this action when he filed his notice of appearance. Notwithstanding his appearance, however, the record demonstrates that service was proper. The defendant was served by substituted service, by delivery thereof together with the complaint and other initiatory papers to Ellen Park, on February 26, 2015 at 3724 East End, [*2]Seaford NY 11783, at which address Ms. Park identified as the defendant's residence (see CPLR 308[2]). The process server described Ms. Park in detail and noted that the mail component of CPLR 308(2) was accomplished on March 3, 2015. To effect the jurisdictional joinder of a defendant pursuant to CPLR 308(2), all that is required is the delivery of the summons "within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend 'personal and confidential'" (see CPLR 308[2]). A temporary residence elsewhere or a temporary absence from the place designated by a defendant as his residence or dwelling place or usual place of abode which lacks the requisite degree of "permanence or stability" will not support a finding of jurisdictional infirmity in the service of process (see Tribeca Lending Corp. v Crawford, 79 AD3d 1018, 916 NYS2d 116 [2d Dept 2010]; Argent Mtge. Co., LLC v Vlahos, 66 AD3d 721, 887 NYS2d 225 [2d Dept 2009]; Dunn v Burns, 42 AD3d 884, 839 NYS2d 894 [4th Dept 2007]; Litton Loan Serv., LP v Vasilatos, 7 AD3d 580, 777, NYS2d 165 [2d Dept 2004]; Northeast Sav., F.A. v Picarello, 232 AD2d 384, 648 NYS2d 145 [2d Dept 1996]).

In his affidavit, Ki Lee avers that he was in and out of the country in 2015 and had extended visits to Korea, and that he did not receive the complaint from Ms. Park. This conclusory denial of service is insufficient to rebut the presumption of proper service established by the affidavit of service (see HSBC Bank USA v Dalessio, 137 AD3d 860, 863, 27 NYS3d 192 [2d Dept 2016]; HSBC Bank USA v Desrouillerer, 128 AD3d 1013, 11 NYS3d 93 [2d Dept 2015]; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 846, 858 NYS2d 186 [2d Dept 2008]. The defendant does not deny that he lives at the address set forth in the process server's affidavit, and does not deny that his sister is Ellen Park, who informed the process server that the defendant lived at the subject address. Moreover, the defendant does not demonstrate that his stays in Korea maintained any degree of permanence. In the face of the presumption of proper service, only a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service and require the court to schedule a traverse hearing (see Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 51 NYS3d 523 [2d Dept 2017]; Sileo v Victor, 104 AD3d 669, 960 NYS2d 466 [2d Dept 2013]; Emigrant Mtge. Co. v Westervelt, 105 AD3d 896, 964, NYS2d 543 [2d Dept 2013]). The defendant's conclusory allegations are insufficient in this regard. As service was proper, the defendant has failed to set forth a reasonable excuse for his default in answering (see U.S. Bank, Natl. Assn. v Smith, 132 AD3d 848, 19 NYS3d 62 [2d Dept 2015]; Community W. Bank, N.A. v Stephen, 127 AD2d 1008, 9 NYS3d 275 [2d Dept 2015]; HSBC Bank, USA v Dammond, 59 AD3d 679, 875 NYS2d 490 [2d Dept 2009]).

Because the defendant failed to advance a reasonable excuse in support of his application to vacate his default in answering and for leave to extend his time to answer under CPLR 3012(d), it is unnecessary to address whether defendant has demonstrated a potentially meritorious defense (see BAC Home Loans Serv., LP v Readon, 132 AD3d 790, 18 NYS3d 664 [2d Dept 2015]; Citimortgage, Inc. v Kowalski, 130 AD3d 558, 13 NYS3d 468 [2d Dept 2015]; [*3]Emigrant Bank v Wiseman, 127 AD3d 1013, 6 NYS3d 670 [2d Dept 2015]). The Court therefore rejects defendant's challenges to plaintiff's standing and compliance with RPAPL § 1304 (see HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 45 NYS3d 543 [2d Dept 2017] citing U.S. Bank N.A. v Ahmed, 137 AD3d 1106, 1109, 29 NYS3d 33 [2d Dept 2016]; SDF8 CBK, LLC v 689 St. Marks Ave., Inc., 131 AD3d 1037, 1038, 16 NYS2d 463 [2d Dept 2015]; see also PHH Mtge. Corp. v Celestin, 130 AD3d 703, 704 [2d Dept 2015]).

With regards to the request for additional settlement conferences, the Court notes that based on the record before it, a settlement conference was held on August 10, 2015 at which time, the matter was released from the Foreclosure Part. No further settlement conferences are required. Finally, the defendant's request regarding discovery is moot considering the withdrawal of plaintiff's motion in chief.

The Court, therefore, marks plaintiff's proposed Order "UNSIGNED"(#002) and denies defendant's cross motion (#003) in its entirety.