Marino v. Marino

82 A.D.2d 798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1981
• Status: Published

Opinion

In a divorce action, defendant appeals from (1) an order of the Supreme Court, Suffolk County (Gerard, J.), dated September 29, 1980, which denied her motion to dismiss the action for lack of personal jurisdiction and directed her to serve an answer within a specified time, and (2) an order of the same court dated December 16,1980, which resettled the order dated September 29,1980 by adding a provision thereto directing defendant to serve a notice of appearance within a specified time. Orders reversed, without costs or disbursements, and matter remitted to Special Term for a hearing as to the sufficiency of the attempted personal service on the defendant. Although the record strongly suggests that defendant was seeking to avoid service of the summons, the record also presents disputed issues of fact upon which the sufficiency of the attempted service may depend, including the precise location of the defendant at the time that service was being attempted at her apartment door. (Cf. Buscher v Ehrich, 12 AD2d 887; McDonald v Ames Supply Co., 22 NY2d 111, 115.) These issues require a hearing to establish the sufficiency of the attempted service. Damiani, J. P., Gibbons, Cohalan and O’Connor, JJ., concur.