Cantalupo v. Cantalupo

Appellate Division of the Supreme Court of New York

Cantalupo v. Cantalupo

271 A.D.2d 390, 707 N.Y.S.2d 323, 2000 N.Y. App. Div. LEXIS 3801

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 2000

StatusPublished

This text of 271 A.D.2d 390 (Cantalupo v. Cantalupo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cantalupo v. Cantalupo, 271 A.D.2d 390, 707 N.Y.S.2d 323, 2000 N.Y. App. Div. LEXIS 3801 (N.Y. Ct. App. 2000).

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Opinion

—In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered April 20, 1999, as denied his motion to vacate a judgment of divorce entered November 25, 1987, upon his default in answering and granted that branch of the plaintiffs cross motion which was to impose a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court did not err in denying the defendant’s motion to vacate the judgment of divorce entered upon his default in answering, without conducting a hearing to determine the validity of service of process. The affidavit of the process server constituted prima facie evidence of proper service. In addition, the plaintiff submitted an affidavit from her father who witnessed service upon the defendant. The defendant’s allegations were insufficient to refute the contents of those affidavits (see, Wieck v Halpern, 255 AD2d 438; Green Point Sav. Bank v Clark, 253 AD2d 514; Remington Invs. v Seiden, 240 AD2d 647).

The defendant’s remaining contentions are without merit. [391]*391O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.

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—In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered April 20, 1999, as denied his motion to vacate a judgment of divorce entered November 25, 1987, upon his default in answering and granted that branch of the plaintiffs cross motion which was to impose a sanction for frivolous conduct pursuant to 22 NYCRR 130-1.1.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court did not err in denying the defendant’s motion to vacate the judgment of divorce entered upon his default in answering, without conducting a hearing to determine the validity of service of process. The affidavit of the process server constituted prima facie evidence of proper service. In addition, the plaintiff submitted an affidavit from her father who witnessed service upon the defendant. The defendant’s allegations were insufficient to refute the contents of those affidavits (see, Wieck v Halpern, 255 AD2d 438; Green Point Sav. Bank v Clark, 253 AD2d 514; Remington Invs. v Seiden, 240 AD2d 647).

The defendant’s remaining contentions are without merit. [391]*391O’Brien, J. P., Altman, Friedmann, McGinity and Smith, JJ., concur.

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Bluebook (online)

271 A.D.2d 390, 707 N.Y.S.2d 323, 2000 N.Y. App. Div. LEXIS 3801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cantalupo-v-cantalupo-nyappdiv-2000.

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