Cadlerock Joint Venture II, L.P. v. Carrion

2017 NY Slip Op 1317, 147 A.D.3d 594, 48 N.Y.S.3d 58

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2017
• Docket: 3162 304493/08
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about June 8, 2012, which, following a traverse hearing, granted defendants’ motion to vacate a default judgment for lack of personal jurisdiction, unanimously affirmed, without costs.

Because plaintiff did not appeal from the separate order granting a traverse hearing, we will not address its arguments directed to that order.

The appellate record shows that the purpose of defendants’ first appearance was to assert a jurisdictional defense based on improper service. Under the circumstances, we do not find that defendants waived their jurisdictional defense (cf. McGowan v Hoffmeister, 15 AD3d 297 [1st Dept 2005]).

The court’s determination that defendants were not personally served turned in large part on its finding that the testimony of defendant Evelyn Carrion was more credible than that of the process server. There is no basis to disturb the court’s credibility determinations, which are entitled to deference on appeal (Arrufat v Bhikhi, 101 AD3d 441, 442 [1st Dept 2012]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Acosta, J.R, Renwick, Moskow-itz, Feinman and Gesmer, JJ.