Gil-Soo Cha v. David

137 A.D.3d 497, 26 N.Y.S.3d 468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2016
• Docket: 436N 300410/14
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 9, 2015, which, in this action for personal injuries sustained in a motor vehicle accident, denied plaintiffs’ motion for a default judgment as against defendant Ida S. David, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in denying plaintiffs’ motion for a default judgment against defendant David. Plaintiffs failed to establish by a preponderance evidence that the alleged service upon defendant was effected at her dwelling place or place of abode (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350 [1st Dept 2002]). Thus, on plaintiff’s motion, the burden never shifted to defendant, who asserted a defense of lack of personal jurisdiction in her answer, which she had served upon plaintiffs prior to plaintiffs’ service of the instant motion. Furthermore, there is no indication that plaintiffs were prejudiced by the delay in obtaining service of defendant’s answer (see Jorge v Conlon, 134 AD3d 480 [1st Dept 2015]).

Concur—Friedman, J.P., Acosta, Renwick and Richter, JJ.