Cadin Contracting Inc. v. Kenneth L. Rich Agency

158 A.D.2d 442, 551 N.Y.S.2d 43, 1990 N.Y. App. Div. LEXIS 1287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1990
• Status: Published

Opinion

The sworn denial by the defendant Kenneth L. Rich that he had been personally served with process under CPLR 308 (1) sufficiently controverted the process server’s affidavit so as to require a hearing on the issue of jurisdiction (see, Frankel v Schilling, 149 AD2d 657; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139; Cranesville Block Co. v Carpenter, 88 AD2d 1015). If service was not properly made, the court would accordingly lack jurisdiction over the appellant and the default judgment would be a nullity as against him (see, Citibank v Keller, 133 AD2d 63, 64; Chase Manhattan Bank v Carlson, 113 AD2d 734, 735). However, if the court finds service was correctly made then, under the circumstances of this case, the motion to vacate the default judgment should be denied. Bracken, J. P., Lawrence, Harwood and Balletta, JJ., concur.