Justice Donna Mills
Citimortgage sought a default judgment against defendants in this quiet title action. Stein was the only defendant to oppose and cross-moved for dismissal of the complaint for lack of jurisdiction, among other things. Citi was the current holder of a consolidated mortgage in this action involving numerous assignments of mortgages and consolidation extension modification agreements executed by Stein. Stein offered several excuses to deny Citi’s motion for a default judgment, claiming the summons was not mailed to his home or business. Even if he was properly served, Stein argued the parties were in active negotiations to modify the loan, and this was a reasonable excuse for his delay in responding to the summons and complaint. The court noted Stein did not dispute sufficient delivery to a person of suitable age and discretion, merely that the mailing prong of CPLR 308(2) rendered service defective. Yet, Stein did not deny he lived at the address on the date of the mailing, thus the court stated mere conclusory denials of receipt of service were insufficient to rebut the presumption service was proper. Also, as the action did not involve a default in payments, but an action to quiet title, Stein’s negotiations to modify a loan was irrelevant. Citi’s motion was granted.
