DEUTSCHE BANK v. QUINONES | NYSC "Restored to Possession, No Affidavit of Service, Not in Default"

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DEUTSCHE BANK v. QUINONES | NYSC “Restored to Possession, No Affidavit of Service, Not in Default”

DEUTSCHE BANK v. QUINONES | NYSC “Restored to Possession, No Affidavit of Service, Not in Default”

NEW YORK SUPREME COURT –
QUEENS COUNTY


DEUTSCHE BANK NATIONAL TRUST CO. As TrusteeUnder Pooling and Servicing Agreement Dated as of November 1, 2006 Securitized Asset Backed Receivables Certificates Series 2006-WM3,

-against-

JOSE QUINONES, JOHNNY FERREIRA, MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., As
Nominee for WMC Mortgage Corp., NYCTAB,
NYCPVB, NYCECB, JOHNNY FERREIRA JR.,
MEKIDA AZCONA, CLARENCE FORD,

EXCERPT:

The referee’s deed dated, March 27, 2009, and filed in the Office of the City Register on April 13, 2009, CFRN 2009000107255 is vacated and set aside and the defendant, Johnny Ferreira is restored to possession.

[…]

Finally, it is pointed out that even if, as plaintiff claims, the defendant was served pursuant to CPLR 308(2), no affidavit of service was filed in this action, thus, the defendant is not in default. Service pursuant to CPLR 308(2) is complete, and the defendant’s time to answer begins to run ten days after filing proof of service (see CPLR 320[a]; 3012[c]; Zareef v. Wong, 61 AD3d 749 [2009]; Marazita v. Nelbach, 91 AD2d 604 [1982], appeal withdrawn 58 NY2d 826 [1983]). No affidavit of service has been filed in this action and the plaintiff has never moved for leave to file the affidavit of service. The plaintiff’s actions, or rather inaction, has contributed if not caused the delay it claims is prejudicial.

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