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

Decided on July 22, 2026

2024-12776, (Index No. 702111/14)

Mark C. Dillon, J.P.

Valerie Brathwaite Nelson

Carl J. Landicino

Susan Quirk, JJ.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Lumarie Maldonado-Cruz, J.), dated October 29, 2024. The order, insofar as appealed from, after a hearing to determine the validity of service of process upon the defendant Trevor D'Andrade, granted that branch of the motion of the defendant Trevor D'Andrade which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction and, in effect, denied that branch of the plaintiff's cross-motion which was pursuant to CPLR 2004 and 306-b for an extension of time to serve the summons and complaint upon the defendant Trevor D'Andrade.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In March 2014, the plaintiff commenced this mortgage foreclosure action against the defendant Trevor D'Andrade (hereinafter the defendant), among others. The defendant did not appear or answer the complaint. Thereafter, the plaintiff moved for leave to enter a default judgment against the defendants and for an order of reference. In an order dated January 22, 2015, the Supreme Court granted the plaintiff's motion.

In October 2020, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. The defendant argued that the plaintiff failed to acquire personal jurisdiction over him when it failed to properly effectuate service of process in the manner prescribed by CPLR 308(4). The plaintiff cross-moved, among other things, pursuant to CPLR 2004 and 306-b for an extension of time to serve the summons and complaint upon the defendant. In an order dated October 29, 2024, after a hearing to determine the validity of service of process upon the defendant, the Supreme Court, inter alia, granted that branch of the defendant's motion and, in effect, denied that branch of the plaintiff's cross-motion. The plaintiff appeals.

"Where service is effected pursuant to CPLR 308(4), the affix and mail method, the plaintiff must demonstrate that the summons was affixed to the door of the dwelling place or usual place of abode of the person to be served and mailed to such person's last known residence" (Miller [*2]v Fuentes, 239 AD3d 730, 731 [internal quotation marks omitted]). "At a hearing on the validity of service of process, the plaintiff bears the burden of proving personal jurisdiction by a preponderance of the evidence" (Bohensky v 1670 42nd St., LLC, 227 AD3d 854, 855 [internal quotation marks omitted]; see Godwin v Upper Room Baptist Church, 175 AD3d 1500, 1501). "In reviewing a determination made after a hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses" (Bohensky v 1670 42nd St., LLC, 227 AD3d at 855 [internal quotation marks omitted]; see Makmudova v Cohen, 216 AD3d 935, 937).

Here, the plaintiff failed to meet its burden of proving personal jurisdiction by a preponderance of the evidence. A process server averred in his affirmation that service was made pursuant to CPLR 308(4). At the hearing, while that process server testified that he had mailed the required documents to the defendant as is required under CPLR 308(4), the process server admitted he had no independent recollection of mailing the documents to the defendant and no longer had access to his logbook from 2014. Further, the Supreme Court found that the process server's testimony was not credible due to the fact that he had purportedly committed 25 service of process violations between 2007 and 2015, and the New York City Department of Consumer Affairs had refused to renew his license as a result. There is no basis in the record to disturb that credibility determination (see Jhang v Nassau Univ. Med. Ctr., 140 AD3d 1018, 1019; Shaw Funding, L.P. v Samuel, 101 AD3d 1100). The plaintiff submitted no other evidence at the hearing to support the assertion that the summons and complaint were properly mailed pursuant to CPLR 308(4) (see Sperry Assoc. Fed. Credit Union v John, 160 AD3d 1007, 1009). Accordingly, the court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction (see Wells Fargo Bank, N.A. v Gewirtz, 204 AD3d 1070, 1072).

Additionally, the Supreme Court properly, in effect, denied that branch of the plaintiff's cross-motion which was for an extension of time to serve the summons and complaint upon the defendant. "Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant a motion for an extension of time to effect service for 'good cause shown' or 'in the interest of justice'" (BAC Home Loans Servicing, L.P. v Tessler, 208 AD3d 619, 621, quoting CPLR 306-b). "[U]nder CPLR 2004, '[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed'" (Wilmington Sav. Fund Socy., FSB v Isom, 246 AD3d 1141, 1142, quoting CPLR 2004). Here, the plaintiff failed to demonstrate good cause for an extension of time to serve the summons and complaint (see Farage v Garden State Veterinary Specialists, Inc., ___ AD3d ___, 2026 NY Slip Op 04178, *1; Wells Fargo Bank, N.A. v Fameux, 201 AD3d 1012, 1014). The plaintiff also failed to establish that an extension of time to serve the defendant was warranted in the interest of justice (see Farage v Garden State Veterinary Specialists, Inc., ___ AD3d at ___, 2026 NY Slip Op 04178, *1; Wells Fargo Bank, N.A. v Fameux, 201 AD3d at 1014). Accordingly, the court properly, in effect, denied that branch of the plaintiff's cross-motion which was pursuant to CPLR 2004 and 306-b for an extension of time to serve the summons and complaint upon the defendant.

The plaintiff's remaining contention is without merit.

DILLON, J.P., BRATHWAITE NELSON, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court