Cadlerock Joint Venture II, L.P. v Carrion

Cadlerock Joint Venture II, L.P. v Carrion 2017 NY Slip Op 01317 Decided on February 21, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2017
Acosta, J.P., Renwick, Moskowitz, Feinman, Gesmer, JJ.
3162 304493/08

[*1]Cadlerock Joint Venture II, L.P., Plaintiff-Appellant,

v

Evelyn Carrion, et al., Defendants-Respondents.

Vlock & Associates, P.C., New York (Steven P. Giordano of counsel), for appellant.

Evelyn Carrion, respondent pro se.

Anthony Carrion, respondent pro se.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about June 8, 2012, which, following a traverse hearing, granted defendants' motion to vacate a default judgment for lack of personal jurisdiction, unanimously affirmed, without costs.

Because plaintiff did not appeal from the separate order granting a traverse hearing, we will not address its arguments directed to that order.

The appellate record shows that the purpose of defendants' first appearance was to assert a jurisdictional defense based on improper service. Under the circumstances, we do not find that defendants waived their jurisdictional defense (cf. McGowan v Hoffmeister, 15 AD3d 297, 382 [1st Dept 2005]).

The court's determination that defendants were not personally served turned in large part on its finding that the testimony of defendant Evelyn Carrion was more credible than that of the process server. There is no basis to disturb the court's credibility determinations, which are entitled to deference on appeal (Arrufat v Bhikhi, 101 AD3d 441, 442 [1st Dept 2012]). We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2017

CLERK