Carter v Mittnacht

[*1] Carter v Mittnacht 2015 NY Slip Op 51088(U) Decided on July 14, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ELLIOT, J.P., PESCE and SOLOMON, JJ.
2014-652 Q C

Anthony Carter, Appellant,

against

William Mittnacht, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 14, 2013. The order granted defendant's motion to vacate a default judgment based on lack of personal jurisdiction.

ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether personal jurisdiction was properly obtained over defendant.

In this subrogation action, instituted in plaintiff's name by USAA Casualty Insurance Company (see CPLR 1004), plaintiff seeks to recover for property damage to, and the loss of use of, his vehicle, as a result of a motor vehicle accident which occurred on December 15, 2001. An affidavit of service indicates that process was served on February 11, 2003 at 1290 Richmond Avenue, Staten Island, a private house, by delivery to a person of suitable age and discretion, and that a copy thereof was subsequently mailed to defendant at the same address. Upon defendant's failure to appear or answer, an inquest was held, and a default judgment in the principal sum of $7,121.84 was entered against defendant on November 5, 2003. In May 2013, defendant moved to vacate the default judgment, pursuant to CPLR 5015 (a) (4), based on lack of personal jurisdiction, claiming, among other things, that he had never "resided" at the address where process had been served. By order entered November 14, 2013, from which plaintiff appeals, the Civil Court granted defendant's motion "upon the ground that plaintiff was unable to provide proof of where defendant lived."

CPLR 308 (2) authorizes service by delivery of the summons to a person of suitable age and discretion at the defendant's dwelling place or usual place of abode, and by mailing the summons to the defendant's last known residence. While the process server's affidavit of service established, prima facie, that defendant had been properly served pursuant to CPLR 308 (2), defendant's sworn statement that he had never resided at the address where process had been served, was sufficient to raise an issue of fact as to whether that address was his "actual . . . dwelling place or usual place of abode" (CPLR 308 [2]) at the time service was effectuated at that location, so as to warrant a traverse hearing on the issue (see Palisades Collection, L.L.C. v Jimenez, 44 Misc 3d 142[A], 2014 NY Slip Op 51316[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed and the matter is remitted to the Civil Court for a new [*2]determination of defendant's motion to vacate the default judgment, following a hearing to determine whether personal jurisdiction was properly obtained over defendant.

Elliot, J.P., Pesce and Solomon, JJ., concur.

Decision Date: July 14, 2015