The following papers were considered in connection with plaintiff's motion for a judgment of default and an order of reference, and defendant's cross-motion for an order dismissing the action or compelling plaintiff to accept service of a late answer:

Plaintiff Deutsche Bank National Trust Company ("Deutsche") commenced this action against defendants James K. Palmer and Board of Managers of Hillcrest Park Condominium Group V ("Hillcrest")^[FN1] on July 27, 2015 to foreclose on a residential mortgage encumbering property located at 7 North James Street, Unit G, Peekskill, New York 10566. Defendant Hillcrest was served with process on July 30, 2015. Defendant Palmer was allegedly served with the summons and complaint on August 13, 2015 and September 10, 2015. Palmer failed to appear or otherwise answer the complaint. Hillcrest, however, filed a Notice of Appearance dated January 4, 2016.

The plaintiff now moves for an order, pursuant to CPLR 3215, granting a judgment of default against the non-answering defendants and appointing a referee to compute the amount due plaintiff. Hillcrest opposes the motion and cross-moves to dismiss the complaint.

In support of its motion, plaintiff asserts that: (1) it is the holder of the note and mortgage, (2) defendant Palmer was properly served with the pleadings and required RPAPL notices, and (3) Palmer is in default of the terms of the note and mortgage as of September 1, 2014. To establish its entitlement to relief, plaintiff submits a copy of the note (Plaintiff's Exhibit B), a copy of the assignment of mortgage from the original lender to plaintiff (Id.), and two affidavits of service. According to the first affidavit, Palmer was served on August 13, 2015 at 1:25 p.m. by affixing a copy of the summons and complaint to the door of the mortgaged premises. (Plaintiff's Exhibit D, p. 2.) The second affidavit states that Palmer was served on September 10, 2015 at 3:44 p.m. by delivery to his co-occupant at the mortgaged premises, identified as "Jane Doe." (Id. at p. 1.)

In opposition and support of its cross-motion, Hillcrest argues that the complaint should be dismissed for lack of personal jurisdiction, pursuant to CPLR 3211(a)(8) and for failure to include a necessary party, pursuant to CPLR 3211 (a)(10). According to Hillcrest, the affidavits of service contain false statements because the mortgaged premises were vacant as of mid-2014, and thus neither Palmer, nor his purported co-occupant Jane Doe, could have been present at the unit in August and September 2015, when service was allegedly effectuated.

To support this contention, Hillcrest submits the affidavits of Aurelio Sanchez, Grounds Superintendent for Hillcrest, and Dan Bonacorsi, a unit owner and Member of the Hillcrest Board of Managers. Sanchez attests that Palmer vacated his unit and moved south (possibly to South Carolina) at least one year prior to the alleged service, and that he never returned. The unit was therefore unoccupied at the time the process server claims to have delivered the pleadings to a co-occupant at the unit. Sanchez further avers that, as Superintendent, he resides at the complex and has keys to the subject unit. As such, Sanchez would know if someone was living there. Dan Bonacorsi also attests that Palmer left the unit at least one year prior to the alleged service and that the apartment was vacant in August and September 2015. There was no co-occupant residing there. Like Sanchez, Bonacorsi lives at the complex and claims that he would know if anyone lived in the unit.

In addition, Hillcrest argues that, even if Palmer had been living at the property at the time of the August 13, 2015 service, the process server failed to exercise the appropriate level of due diligence required before utilizing the "nail and mail" provision of CPLR 308. Hillcrest asserts that this lack of due diligence is evident by the process server's failure to state whether he made any prior attempts to personally serve Palmer prior to affixing the summons and complaint to the door of the unit.

Hillcrest further contends that, in the event the Court does not dismiss the complaint, Hillcrest should be granted leave to file an answer, pursuant to CPLR 3012(d), in order to assert the defense of lack of service. According to Hillcrest, such an order should be granted, in the interests of justice, particularly given that the plaintiff is seeking the entry of a fraudulent judgment.

In opposition, plaintiff argues that Hillcrest's general denial of service is insufficient to rebut the presumption of proper service established by the process servers' affidavits. Even if Hillcrest had met its burden, plaintiff asserts that Hillcrest has no standing to contest the validity of service upon Palmer and any alleged lack of personal jurisdiction may only be raised by Palmer himself.

On a motion for leave to enter a default judgment pursuant to CPLR 3215, the plaintiff is [*2]required to submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default in answering or appearing. (See CPLR 3215[f].)

In considering a motion to dismiss, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory." (Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682, 682 [2d Dept. 2012], citing Sokol v. Leader, 74 AD3d 1180, 1181 [2d Dept. 2010] [internal quotation marks omitted].)

A process server's affidavit of service constitutes prima facie evidence that a defendant was validly served. (US Consults v. APG, Inc., 82 AD3d 753 [2d Dept. 2011]; Bank of NY v. Segui, 68 AD3d 908, 909 [2d Dept. 2009].) A defendant's denial of service, standing alone, without any factual elaboration, is insufficient to warrant granting a traverse hearing. (Deutsche Bank Natl. Trust Co. v. Dixon, 93 AD3d 630 [2d Dept. 2012] [in mortgage foreclosure action, defendant's conclusory denial of receipt of a copy of the summons and complaint was insufficient to rebut the presumption of proper service established by the affidavit of the plaintiff's process server].)

Contrary to plaintiff's contention, Hillcrest's allegations do not constitute "a bare denial of service" that "should be treated as [nothing] more than hearsay." (Plaintiff's Opposition, ¶ 7). Hillcrest submitted sworn statements from individuals that provided specific facts to rebut the presumption of proper service established by the process servers' affidavits. However, as plaintiff correctly argues, Hillcrest lacks standing to contest the validity of service on Palmer. (Wells Fargo Bank, N.A. v. Bowie, 89 AD3d 931, 932 [2d Dept. 2011] [finding that appellant lacked standing to contest the validity of service upon co-defendant Bowie "inasmuch as that claim is personal to Bowie, and thus may be raised, if at all, only by Bowie"]; see NYCTL 1996-1 Trust v. King, 13 AD3d 429, 430 [2d Dept. 2004] ["The defense of improper service of process in a foreclosure action is personal in nature and may only be raised by the party improperly served"]; see also Home Sav. of Am. v. Gkanios, 233 AD2d 422, 423 [1996]; 2 Bergman, New York Mortgage Foreclosures § 23.45].) Accordingly, that branch of Hillcrest's motion to dismiss the complaint for lack of service on Palmer must be denied. In addition, since the answer Hillcrest seeks to file would contain the same claim concerning jurisdiction, made on behalf of Palmer, that branch of Hillcrest's motion for an order granting leave to file an answer is also denied.

Nevertheless, while Hillcrest has no standing to contest the validity of service, and is therefore, not entitled to the relief it seeks, the Court has a duty to ensure that Palmer was properly served before granting a judgment of default against him. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (In re Exec. Life Ins. Co. of New York, 103 AD3d 631, 633 [2d Dept. 2013], citing Milliken v. Meyer, 311 U.S. 457, 459 [1940]; see also In re Foreclosure of Tax Liens, 18 NY3d 634, 639 [2012]; Keane v. Kamin, 94 NY2d 263, 265 [1999], citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 [1950].) While "[d]ue process does not require actual receipt of notice before a person's liberty or property interests may be adjudicated . . . [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Beckman v. Greentree Sec., Inc., 87 NY2d 566, 570 [1996], citing Mullane, 339 U.S. at 314-315.)

Thus, if defendant Palmer actually vacated the unit at 7 North James Street in Peekskill, New York as early as mid-2014, nearly one year prior to plaintiff's alleged service, then service was improper and plaintiff's motion for a judgment of default must be denied. Accordingly, a traverse hearing is required. At the hearing, plaintiff must present admissible evidence to substantiate the statements in the process servers' affidavits that 7 North James Street was defendant's residence on August 13, 2015 and September 10, 2015, when plaintiff served him there, and that such service complied with the requirements of due process, and CPLR 308. If the plaintiff satisfies this standard, its motion for a judgment of default, pursuant to CPLR 3215, and for the appointment of a referee to compute the amount due to plaintiff, pursuant to RPAPL 1321, shall be granted.

Based upon the foregoing, it is hereby,

ORDERED that the defendant's cross-motion is denied; and it is further

ORDERED that the parties are directed to appear on September 27, 2016 at 9:15 a.m. in the Settlement Conference Part of the Westchester County Courthouse, Courtroom 1600, 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601, to schedule a traverse hearing on the issue of whether service of the summons and complaint was properly effectuated upon the defendant James K. Palmer; and it is further

ORDERED that if the plaintiff demonstrates at the hearing that defendant James K. Palmer was properly served, plaintiff's motion for a judgment of default and an order of reference shall be granted; however, if plaintiff fails to establish proper service, plaintiff's motion shall be denied in its entirety.

This constitutes the Decision and Order of the Court.