U.S. Bank N.A. v Abu

U.S. Bank N.A. v Abu 2021 NY Slip Op 02480 Decided on April 22, 2021 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 and Entered: April 22, 2021
Before: Manzanet-Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ.
Index No. 32349/17E Appeal No. 13643 Case No. 2020-01249

[*1]U.S. Bank National Association, as Trustee to Structured Asset Investment Loan Trust, Mortgage Pass-Through Certificates, Plaintiff-Respondent,

v

Mark Abu, Defendant-Appellant, New York City Environmental Control Board, et al., Defendants.

Madu, Edozie & Madu, P.C., Bronx (Uche Emelumadu of counsel), for appellant.

Parker Ibrahim & Berg LLP, New York (Laurence P. Chirch of counsel), for respondent.

Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered April 16, 2019, which, to the extent appealed from as limited by the briefs, denied defendant's motion to vacate the default judgment or to dismiss the action, unanimously reversed, on the law, without costs, and the motion granted to the extent of remanding the matter for a traverse hearing to determine whether the court had jurisdiction to render the default judgment.

Defendant Mark Abu's sworn, nonconclusory statement and documentary evidence that the apartment at which he was allegedly served was not his actual dwelling place or usual place of abode raised an issue of fact as to whether plaintiff validly served him with process pursuant to CPLR 308(2), so as to vest the court with jurisdiction to render the default judgment (see NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459, 460 [1st Dept 2004]). Accordingly, a traverse hearing should be held to determine whether Abu is entitled to relief from the judgment pursuant to CPLR 5015(a)(4).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 22, 2021