Fidelity & Casualty Co. v. Yager

46 A.D.2d 615, 359 N.Y.S.2d 787, 1974 N.Y. App. Div. LEXIS 4010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 10, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on March 26, 1974, denying defendant’s motion to vacate service of process allegedly made by substituted service, or, in the alternative, to vacate a judgment entered herein against him after inquest and for leave to interpose an answer, unanimously reversed, on the law, without costs and without disbursements, the motion granted to the extent of vacating the judgment of the Supreme Court, New York County, entered on June 8,1973, in favor of plaintiff in the amount of $35,271.88 and the matter remanded for a hearing as to validity of service. The printed form of “Affidavit of Substituted Service of Summons ”, executed by the process server and submitted to Special Term, omits essential facts pertaining to the purported substituted service on defendant, and the one bit of evidentiary detail which is contained therein, to wit: an alleged conversation with “a neighbor [of defendant] who confirmed his residence and said that the defendant was not in” appears to be false. Under the circumstances, the validity of such service cannot be determined on the submitted affidavits alone. Special Term erroneously denied defendant’s motion because “ no meritorious defense has been set forth ”. As indicated, it is questionable whether the court ever acquired jurisdiction over defendant. Hence, we do not reach the question of whether a proper affidavit of merits was or was not furnished, as it is entirely irrelevant to the basic jurisdictional question presented.. Concur—McGivern, P. J., Nunez, Lupiano, Steuer and Capozzoli, JJ.