Coolidge-Island Equities Ltd. Partnership v. Nicholas

226 A.D.2d 577, 641 N.Y.S.2d 560, 1996 N.Y. App. Div. LEXIS 4392

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 22, 1996
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Katherine Nicholas appeals from (1) a judgment of the Supreme Court, Suffolk County (Cohalan, J.), dated March 8, 1995, which is in favor of the plaintiff and against her on her default in answering, inter alia directing the sale of the subject premises at public auction, and (2) an order of the same court also dated March 8, 1995, which, inter alia, denied her motion to vacate her default in appearing and answering the complaint.

Ordered that the matter is remitted to the Supreme Court, Suffolk County, to hear and determine whether the appellant was properly served with the summons and the appeals are held in abeyance in the interim. The Supreme Court, Suffolk County, is to file its report with all convenient speed.

The affidavit by the defendant Katherine Nicholas denying that she 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, Skyline Agency v Ambrose Cappotelli, Inc., 117 AD2d 135). Balletta, J. P., Thompson, Santucci and Florio, JJ., concur.