Firstar Bank v Don Michael Palmer

Firstar Bank v Palmer 2003 NY Slip Op 19270 [2 AD3d 487] December 8, 2003 Appellate Division, Second Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

Firstar Bank, N.A., Appellant,
v
Don M. Palmer, Respondent, et al., Defendants.

—In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Berler, J.), dated September 13, 2002, which, after a hearing, granted the motion of the defendant Don Michael Palmer to vacate the judgment of foreclosure and sale for lack of in personam jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

It is well settled that a decision rendered by a court after a hearing should not be disturbed unless it is clear that its conclusions could not have been reached under any fair interpretation of the evidence (see Richard's Home Ctr. & Lbr. v Kraft, 199 AD2d 254 [1993]; Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829 [1991]).

The record supports the hearing court's conclusion that the respondent was not properly served. Moreover, the court was in the best position to evaluate the credibility of the witnesses who testified before it and we will not disturb its determination in that regard (see Richard's Home Ctr. & Lbr. v Kraft, supra; Universal Leasing Servs. v Flushing Hae Kwan Rest., supra). Santucci, J.P., McGinity, Schmidt and Adams, JJ., concur.