Bank of Am., N.A., (US) v Hakim

[*1] Bank of Am., N.A., (US) v Hakim 2009 NY Slip Op 52247(U) [25 Misc 3d 135(A)] Decided on November 10, 2009 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 10, 2009
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570585/09.

Bank of America, N.A., (US), Plaintiff-Respondent,

against

Mohammed Hakim, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, New York County (Peter M. Moulton, J.), entered May 21, 2009, which denied his motion to vacate a default judgment.

Per Curiam.

Order (Peter M. Moulton, J.), entered May 21, 2009, modified to the extent of directing a traverse hearing, and as so modified, affirmed, without costs, and the matter remanded for further proceedings consistent herewith.

Defendant's sworn assertions refuting the contents of the affidavit submitted by plaintiff's process server were sufficient to raise an issue of fact as to whether the court obtained personal jurisdiction over defendant, thereby warranting a traverse (see CPLR 5015[a][4]; NYCTL 199B-1 Trust v Rabinowitz, 7 AD3d 459 [2004]). In the event the traverse is overruled, defendant's vacatur motion must be denied because he failed to demonstrate a potentially meritorious defense to the action.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 10, 2009