Halvorsen v. Halvorsen

88 A.D.2d 581, 449 N.Y.S.2d 798, 1982 N.Y. App. Div. LEXIS 16748

Opinion

— In a matrimonial action, the defendant wife appeals from an order of the Supreme Court, Kings County (Duberstein, J.), dated July 31, 1981, which denied her motion to vacate and set aside a judgment of divorce granted to the plaintiff husband on May 28, 1976. Order reversed, on the law, without costs or disbursements, and matter remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith. In view of the closely contested factual dispute regarding service upon the defendant in the divorce action, it was error for the court to deny the defendant’s motion pursuant to CPLR 5015 (subd [a], par 4) to vacate the resulting judgment without first conducting a hearing. The matter cannot be determined upon the conflicting affidavits before the court. (See Dege v Mascot Realty Corp., 243 App Div 546; see, also, Antalek v Elliott, 26 AD2d 716; Matter of Roberts, 19 AD2d 391; cf. Weinberg v Hillbrae Bldrs., 58 AD2d 546.) Damiani, J. P., Lazer, Mangano and Gulotta, JJ., concur.