Federal Deposit Insurance v. Evangelista

Appellate Division of the Supreme Court of New York

Federal Deposit Insurance v. Evangelista

226 A.D.2d 208, 641 N.Y.S.2d 19, 1996 N.Y. App. Div. LEXIS 3884

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

DecidedApril 16, 1996

StatusPublished

Cited by2 cases

This text of 226 A.D.2d 208 (Federal Deposit Insurance v. Evangelista) 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

Federal Deposit Insurance v. Evangelista, 226 A.D.2d 208, 641 N.Y.S.2d 19, 1996 N.Y. App. Div. LEXIS 3884 (N.Y. Ct. App. 1996).

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Opinion

Order, Supreme Court, Nassau County (Gabriel Kohn, J.), entered January 17, 1995, which, inter alia, in an action to foreclose a mortgage, granted plaintiff receiver’s motion for summary judgment upon finding, after a hearing, that the court had personal jurisdiction over defendant-appellant mortgagor, unanimously affirmed, with costs.

A preponderance of the evidence at the traverse, including the process server’s testimony, affidavit of service and logbook, established that the summons and complaint were delivered to defendant’s wife, a person of suitable age and discretion, on June 8,1994, and mailed the next day to defendant’s residence, in accordance with CPLR 308 (2). The discrepancies between the process server’s description of defendant’s wife and her actual height, weight and first name are not so significant as to warrant disturbing the hearing court’s finding that she was served (see, Black v Pappalardo, 132 AD2d 640; Kardanis v Velis, 90 AD2d 727). To the contrary, that defendant’s wife, who speaks English with a foreign accent and had "extreme difficulty” expressing herself at the hearing, and who stated at the hearing that her name is "Antonia”, was identified in the affidavit of service as "Antoinette”, is a circumstance that reflects well on the process server’s credibility. Concur—Rosenberger, J. P., Rubin, Nardelli and Tom, JJ.

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Order, Supreme Court, Nassau County (Gabriel Kohn, J.), entered January 17, 1995, which, inter alia, in an action to foreclose a mortgage, granted plaintiff receiver’s motion for summary judgment upon finding, after a hearing, that the court had personal jurisdiction over defendant-appellant mortgagor, unanimously affirmed, with costs.

A preponderance of the evidence at the traverse, including the process server’s testimony, affidavit of service and logbook, established that the summons and complaint were delivered to defendant’s wife, a person of suitable age and discretion, on June 8,1994, and mailed the next day to defendant’s residence, in accordance with CPLR 308 (2). The discrepancies between the process server’s description of defendant’s wife and her actual height, weight and first name are not so significant as to warrant disturbing the hearing court’s finding that she was served (see, Black v Pappalardo, 132 AD2d 640; Kardanis v Velis, 90 AD2d 727). To the contrary, that defendant’s wife, who speaks English with a foreign accent and had "extreme difficulty” expressing herself at the hearing, and who stated at the hearing that her name is "Antonia”, was identified in the affidavit of service as "Antoinette”, is a circumstance that reflects well on the process server’s credibility. Concur—Rosenberger, J. P., Rubin, Nardelli and Tom, JJ.

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Bluebook (online)

226 A.D.2d 208, 641 N.Y.S.2d 19, 1996 N.Y. App. Div. LEXIS 3884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-v-evangelista-nyappdiv-1996.

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