Cordova v. Thessalonica Court Associates

35 A.D.3d 256, 827 N.Y.S.2d 29

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 6, 2005, which summarily denied defendant’s motion to vacate a default judgment against it, unanimously reversed, on the law, without costs, and the matter remanded for a traverse hearing to determine whether the court had jurisdiction to render the default judgment.

Defendant’s motion for relief from the subject default judgment was supported by affidavits of defendant’s managing general partner and site manager attesting that defendant had no record of having been served with the summons and complaint in this matter; further averring that the site manager was the only representative of defendant authorized to accept service at the site where service was allegedly made, and that she had not been served with the papers; and denying that, at the time of the alleged service, defendant employed any individual fitting the description of the person served set forth in the affidavit of service filed with the court. In view of this evidence, an issue of fact exists as to whether plaintiff validly served defendant with process in accordance with CFLR 310 so as to invest the court with jurisdiction to render the subject default judgment. Accordingly, a traverse hearing must be held to determine whether defendant is entitled to relief from the judgment pursuant to CFLR 5015 (a) (4). Concur—Mazzarelli, J.E, Friedman, Nardelli, Gonzalez and Catterson, JJ.