On March 16, 2026, Justice Jamieson of the Westchester County Commercial Division issued a decision in Wilmington Sav. Fund Socy., FS v. Marrow, 2026 NY Slip Op. 50334(U), dismissing a foreclosure action for failure to serve the defendant at the proper address, explaining:
The basis for the motion is that movant was never served with any of the papers in this action, and that therefore nothing that has occurred is valid. In support of his motion, he submits his affidavit, in which he states that he has been living in the Premises for the last 25 years, including at the time of his mother’s death in July 2018. He further states that the summons and complaint, and all other papers in this action were not served at the Premises, but were instead purportedly served at a different address, 428 S. 1st Avenue, Mount Vernon (the “Wrong Address”). Movant asserts that although the affidavit of service says that service was effectuated on him at the Wrong Address by serving movant’s brother, movant states that that is impossible, because his brother did not live at the Wrong Address by that time in 2019.
A review of the papers served in this action shows that plaintiff only ever served movant at the Wrong Address. This is puzzling at best, since at the time that plaintiff filed the complaint, movant had already filed the Petition for Probate of decedent’s will. In that document, movant states, in three separate places, that his address is the Premises. Moreover, the Petition for Probate was filed in this action in December 2021, more than a year before plaintiff filed the motion for summary judgment in this action. Additionally, in his petitions for bankruptcy, movant uses the Premises address, not the Wrong Address. Yet throughout this litigation, plaintiff continued to serve movant at the Wrong Address despite the many instances in which plaintiff received documents containing his correct address (the Premises).
Because plaintiff only ever purported to serve movant at the Wrong Address, service was never actually effectuated on him. As the Court of Appeals has held, Notice received by means other than those authorized by statute does not bring a defendant within the jurisdiction of the court. Here, service was never made on movant.
Plaintiff argues that because, in the Order of Reference, the Court found that service was proper, movant may not raise the issue of improper service now. This is incorrect. At that time the Court found that service was proper based on the information provided to the Court by plaintiff; the Court merely checked the affidavit of service, and saw that service was made — but the Court did not know that the address was the Wrong Address. Now that the Court sees the evidence, however, the Court simply cannot allow an inequitable result to stand. As the Second Department has instructed, A foreclosure action is equitable in nature and triggers the equitable powers of the court.
Given that service was never effectuated on movant, this foreclosure action must be dismissed. All proceedings herein are a nullity.
(Internal quotations and citations omitted).