Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 8, 2026

2021-02543, 2021-02545, (Index No. 13010/13)

Lara J. Genovesi, J.P.

Linda Christopher

Barry E. Warhit

Lourdes M. Ventura, JJ.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Denise F. Molia, J.), dated May 22, 2019, and (2) an order of the same court dated December 8, 2020. The order dated May 22, 2019, insofar as appealed from, directed a hearing to determine whether the defendant Jaime Aucapina was properly served with process. The order dated December 8, 2020, insofar as appealed from, granted those branches of that defendant's motion which were to vacate a judgment of foreclosure and sale of the same court dated February 10, 2017, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

ORDERED that the appeal from the order dated May 22, 2019, is dismissed; and it is further,

ORDERED that the order dated December 8, 2020, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Jaime Aucapina.

In June 2005, the defendant Jaime Aucapina (hereinafter the defendant) executed a note in the principal sum of $428,000, which was secured by a mortgage on certain real property located in Southampton (hereinafter the property). In April 2013, the plaintiff's predecessor in interest commenced this action against the defendant, among others, to foreclose the mortgage. An affidavit of service indicated that, in May 2013, the process server served the defendant pursuant to CPLR 308(2) by leaving a copy of the summons and complaint, among other documents, for the defendant at the property with a person of suitable age and discretion, namely, "Adriana Aucapina, Wife" (hereinafter Adriana). The affidavit of service also stated that a copy of process was mailed to the defendant at the property.

The defendant failed to interpose an answer or otherwise timely appear in the action. In September 2015, the Supreme Court issued an order, inter alia, appointing a referee to compute the amount due to the plaintiff. In February 2017, the court issued a judgment of foreclosure and [*2]sale, among other things, confirming the referee's report and directing the sale of the property.

In June 2017, the defendant moved, inter alia, to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, or, in the alternative, for a hearing to determine the validity of service of process upon him. In an order dated May 22, 2019, the Supreme Court, among other things, directed a hearing to determine whether the defendant was properly served with process. At the hearing, the defendant testified, inter alia, that, in April 2013, Adriana obtained a temporary order of protection against him and that he did not reside at the property at the time of service. Additionally, the defendant presented evidence that, between 2013 and 2016, he resided at an address in East Hampton. After the hearing, by order dated December 8, 2020, the court, among other things, granted those branches of the defendant's motion which were to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The plaintiff appeals.

The appeal from so much of the order dated May 22, 2019, as directed a hearing to determine whether the defendant was properly served with process must be dismissed. The challenged portion of the order merely directed a judicial hearing to aid in the disposition of a motion and does not affect a substantial right. Therefore, it is not appealable as of right (see Wells Fargo Bank, N.A. v Santos, 192 AD3d 851; Bank of N.Y. v Segui, 120 AD3d 1369, 1370), and leave to appeal has not been granted.

"Service of process under CPLR 308(2), which is at issue here, requires that the summons be delivered within the state to a person of suitable age and discretion at the defendant's actual place of business, dwelling place or usual place of abode, along with a mailing of the summons to the defendant's last known residence or actual place of business. Personal jurisdiction is not acquired absent compliance with both the delivery and mailing requirements of the statute" (Rhoe v Reid, 240 AD3d 633, 635 [internal quotation marks omitted]). "[S]ervice is invalid if the service address is not, in fact, the defendant's actual place of business, dwelling place, or usual place of abode" (id. at 635-636 [internal quotation marks omitted]). "At a hearing to determine the validity of service, the burden of proving the existence of personal jurisdiction is on the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence" (Federal Natl. Mtge. Assn. v Smith, 219 AD3d 938, 941 [internal quotation marks omitted]; see Wilmington Trust Co. v Gewirtz, 193 AD3d 1110, 1112). "Credibility determinations rendered by the Supreme Court as to the witnesses who have testified are entitled to great deference on appeal" (Rhoe v Reid, 240 AD3d at 636; see Everbank v Kelly, 203 AD3d 138, 142-143).

Here, we discern no basis to disturb the Supreme Court's determination, based upon its assessment of the credibility of the witnesses at the hearing, that the plaintiff failed to meet its burden and that service was not properly effected upon the defendant (see U.S. Bank N.A. v Aoudou, 189 AD3d 1301, 1303; Wells Fargo Bank, N.A. v Barasch, 188 AD3d 955, 956). Accordingly, the court properly granted those branches of the defendant's motion which were to vacate the judgment of foreclosure and sale, and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

GENOVESI, J.P., CHRISTOPHER, WARHIT and VENTURA, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court