Cranesville Block Co. v. Carpenter

88 A.D.2d 1015, 451 N.Y.S.2d 923, 1982 N.Y. App. Div. LEXIS 17429

Opinion

— Appeal from an order of the Supreme Court at Special Term (Dier, J.), entered August 4,1981 in Schenectady County, which granted defendant’s motion to vacate a default judgment. Plaintiff entered a default judgment against defendant for moneys allegedly owed on account. When it sought execution thereon, defendant moved to be relieved of his default. In his moving affidavit he averred that he had never been served with any papers in the underlying action. Annexed to plaintiff’s answering papers is the affidavit of the process server which appears regular on its face. Confronted with conflicting affidavits concerning the existence of personal jurisdiction, a hearing should have been conducted to resolve whether personal service had indeed been effected 0Steiner v Steiner, 81 AD2d 725). As the credibility issues presented could not appropriately be decided upon the affidavits alone (Wickham v Liberty Mut. Ins. Co., 73 AD2d 742), the motion cannot be determined until that hearing has been held. Order reversed, on the law, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. Kane, J. P., Main, Casey, Mikoll and Yesawich, Jr., JJ., concur.