JPMorgan Chase Bank, National Ass'n v. Lilker
153 A.D.3d 1243
N.Y. App. Div.2017Background
- Plaintiff JPMorgan Chase sued to foreclose a consolidated mortgage on defendants’ residential property in Lawrence, NY.
- After four unsuccessful personal-service attempts, the process server used CPLR 308(4) "nail and mail" service, affixing process to the door on Saturday, October 19, 2013, and mailing copies.
- Defendants did not answer; counsel appeared for an initial settlement conference but neither defendants nor counsel appeared at the adjourned conference or the inquest. A judgment of foreclosure and sale was entered December 23, 2014.
- Defendants moved (CPLR 5015(a) and 317) to vacate the judgment and (CPLR 3211(a)) to dismiss for lack of personal jurisdiction, arguing service was invalid under General Business Law § 13 because they are observant Orthodox Jews who cannot be served on the Sabbath.
- Defendants submitted a counsel letter (faxed Aug. 26, 2013) notifying plaintiff’s counsel of their Sabbath observance; plaintiff’s counsel denies receipt.
- Supreme Court denied the motion; the Appellate Division reversed and remitted for a hearing on whether plaintiff’s counsel had knowledge that Saturday service would violate GBL § 13.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by affixation on Saturday violated GBL § 13 and thus was void | Service was valid under CPLR 308(4); no jurisdictional defect | Affixation occurred on Saturday despite defendants’ known Sabbath observance, so service is void and court lacks personal jurisdiction | Statute applies to Saturday affixation under CPLR 308(4); such service is void if done maliciously with knowledge defendants observe Sabbath (remand for factual hearing) |
| Whether plaintiff (or its counsel) had knowledge that defendants could not be served on Saturday | Denies receipt of notice; submits IT affidavit showing no record of the fax | Produced a faxed letter advising plaintiff’s counsel defendants are observant; prima facie proof of knowledge | Existence of conflicting proof creates a question of fact requiring a hearing to determine counsel’s knowledge (agency imputes counsel’s knowledge to process server) |
| Whether any failure to comply with note or RPAPL 1304 requires vacatur under CPLR 5015(a)(4) | Failure to comply argued but relates to merits | Alleged notice defects warrant vacatur | Defects about notice go to the merits, not subject-matter jurisdiction; CPLR 5015(a)(4) relief not appropriate on that basis |
| Whether defendants showed reasonable excuse for default to vacate under CPLR 5015(a)(1) | Judgment should stand; defendants defaulted | Default excused due to invalid service and other circumstances | Defendants did not rely on CPLR 5015(a)(1) and failed to demonstrate a reasonable excuse for default |
Key Cases Cited
- Martin v. Goldstein, 20 A.D. 203 (App. Div. 1897) (service on Sabbath in violation of statutory prohibition voids personal jurisdiction)
- Matter of Kushner, 200 A.D.2d 1 (App. Div. 1994) (addressed issue but did not decide)
- Matter of Trosk v. Cohen, 262 N.Y. 430 (Ct. of Appeals 1933) (discussing reach of statutory protections for observant Sabbath keepers)
- Perellie v. Crimson's Rest., 108 A.D.2d 903 (App. Div. 1985) (standards for vacatur for default under CPLR 5015)
- Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95 (App. Div. 2011) (notice defects challenge merits of foreclosure, not jurisdiction)
- TD Bank, N.A. v. Mandia, 133 A.D.3d 590 (App. Div. 2015) (similar principle that notice defects do not support CPLR 5015(a)(4) relief)