Rosenblum v Rosenblum

Rosenblum v Rosenblum 2016 NY Slip Op 08168 Decided on December 6, 2016 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 December 6, 2016
Renwick, J.P., Saxe, Gische, Webber, JJ.
121987/00 2388 2387

[*1]Leonard Rosenblum, Plaintiff-Respondent,

v

Joseph Rosenblum, Defendant-Appellant.

Kurzman Eisenberg Corbin & Lever, LLP, White Plains (Michael H. Friedman of counsel), for appellant.

Wimpfheimer & Wimpfheimer, New York (Michael C. Wimpfheimer of counsel), for respondent.

Amended judgment, Supreme Court, New York County (Charles E. Ramos, J.), entered on or about August 10, 2015, awarding plaintiff the total sum of $349,636.49, unanimously affirmed, without costs. Appeal from resettled order, same court and Justice, entered August 10, 2015, which granted plaintiff's motion and cross motion, and denied defendant's cross motion, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff has the burden of demonstrating by a preponderance of the credible evidence that service was properly made on defendant pursuant to CPLR 308(2) (see Navarro v Singh, 110 AD3d 497, 498 [1st Dept 2013]).

The court properly concluded that defendant was served with the complaint based on the attorney's testimony that he personally went to defendant's residence and handed defendant the summons and complaint, after defendant identified himself. The court's determination, which turned on credibility, is entitled to deference (see Arrufat v Bhikhi, 101 AD3d 441, 442 [1st Dept 2012]).

The court had the authority to correct the judgment to reflect the reduced ad damnum clause of the complaint because the change did not prejudice defendant or affect a substantial [*2]right (see CPLR 2001).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2016

CLERK