A House

In a case pending in Kings County, New York before Justice Robyn Garcin, a defendant named Acevedo sought to restore a prior motion to dismiss the foreclosure lawsuit brought against him by Deutsche Bank. The bank had an affidavit from their process server that claimed that Acevedo was served at 272 Etna Street. The service of the Summons and Complaint was made at that address, the bank claimed, to person of suitable age and discretion and thereafter a copy of it was mailed to Acevedo at that address.


Acevedo, in his motion papers, documented that he had not resided at 272 Etna Street since 2009. He therefore argued that the service of the Summon ad Complaint was not properly effectuated at his him or the place he resided. The attorneys for the bank claimed Acevedo waived the defense of of lack of personal jurisdiction by failing to commence a motion to dismiss the lawsuit within 60 days of service of the original date of service of his answer to the Summons and Complaint. However, Justice Robyn Garcin found that due to the circumstances involved in this case Acevedo should not be held to the 60 day limitation with regard to making a motion to dismiss a Summons and Complaint based on improper service. Justice Garcin, in her opinion stated that: “the initiation of the lawsuit by serving Acevedo at the wrong address was defective and therefore the foreclosure lawsuit was dismissed.

Elliot S. Schlissel, Esq. is a foreclosure defense attorney representing homeowners throughout the metropolitan New York area for more than 45 years.


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