Mcmillian v Twitty

[*1] Mcmillian v Twitty 2010 NY Slip Op 51732(U) [29 Misc 3d 128(A)] Decided on October 1, 2010 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 1, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1390 K C.

Paul McMillian, Respondent,

against

Ronald Twitty and Shally Electric, Inc., Defendants, -and- PETER LINKOURENTZOS, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 4, 2009. The order, after a traverse hearing, denied defendant Peter Linkourentzos's motion to vacate the default judgment entered against him and to dismiss the complaint insofar as asserted against him.

ORDERED that the order is reversed without costs and defendant Peter Linkourentzos's motion to vacate the default judgment entered against him and to dismiss the complaint insofar as asserted against him is granted.

In this action against three defendants, plaintiff seeks to recover the sum of $25,000 relating to construction work performed at 2801 Emmons Ave. in Brooklyn. Defendant Peter Linkourentzos (appellant) did not appear in the action. A trial was held, after which the Civil Court found that plaintiff had failed to prove a prima facie case of damages against the two appearing defendants. The court ordered the dismissal of the complaint as against those two defendants and further ordered the entry of a default judgment in the sum of $25,000 against appellant. Appellant moved to vacate the default judgment that was subsequently entered against him and to dismiss the complaint insofar as asserted against him, alleging that he had never been served in the action, that he did not live in or maintain an office in the subject building, where he had allegedly been served, and that he had no personal interest in the subject building. After a [*2]traverse hearing, the Civil Court found that appellant had been served pursuant to CPLR 308 (2) at his actual place of business, 2801 Emmons Ave., and denied appellant's motion in its entirety.

We find that plaintiff did not meet his burden of establishing that appellant was properly served (see Bernardo v Barrett, 87 AD2d 832 [1982]). At the traverse hearing, the process server testified that he had served a person of suitable age and discretion, the superintendent's wife, at apartment D-1 of the subject building, which is the superintendent's apartment. The record does not support the Civil Court's finding that 2801 Emmons Ave. was appellant's actual place of business.

Because appellant had not been properly served, the default judgment should have been vacated (see CPLR 5015 [a] [4]), and the complaint, insofar as asserted against him, should have been dismissed for lack of personal jurisdiction (see CPLR 3211 [a] [8]).

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: October 01, 2010