While the problems and the minutiae of process service assuredly impact the foreclosure case – and are thereby meaningful to lenders and servicers – the details typically repose with counsel. (One exception is when a borrower cannot be found an inquiry may be made to the servicer about possible file information which might help find the elusive party.) But the subject remains meaningful because process service is so critical, especially in the foreclosure arena. Accordingly, we have addressed it in alerts a number of times, most recently highlighting the extraordinary peril when a foreclosure is successfully attacked at or near the end of the action.
The impetus for this alert is a new case which comments upon the efficacy of serving a doorman at a building for a resident. [Bank of America, N.A. v. Grufferman, 117 A.D.3d 508, 985 N.Y.S.2d 532 (1st Dept. 2014)] The concern is both real and commonplace.
Where the property is an owner occupied condominium, or regardless of the nature of the property, a person resides and needs to be served in a doorman apartment building, condo or co-op, the process servicer’s dilemma is getting to the unit to serve. More than a few prospective defendants are pleased not to be available and doormen typically will deny entrance to a process server.
Can the doorman be served for the resident (followed by the requisite mailing in addition)? The case confirms the answer as “yes”.
Service is proper [under CPLR §308(2)] if the process server is denied access and where the process server’s testimony as to lack of access is credible.
With this confirmation in mind, much time can be saved trying to find other ways to serve the reticent defendants.
Mr. Bergman, author of the four-volume treatise, Bergman on New York Mortgage Foreclosures, LexisNexis Matthew Bender (rev. 2017), is a partner with Berkman, Henoch, Peterson, Peddy & Fenchel, P.C. in Garden City, New York. He is also a member of the USFN, The American College of Real Estate Lawyers, The American College of Mortgage Attorneys, an adviser to the New York Times on foreclosure issues and writes a regular servicing column for the New York Law Journal. He is AV rated by Martindale-Hubbell, his biography appears in Who’s Who In American Law and he has been for years listed in Best Lawyers In America and New York Super Lawyers.