Monzon v. Schlenker

144 A.D.2d 241, 533 N.Y.S.2d 434, 1988 N.Y. App. Div. LEXIS 10420

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1988
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about March 3, 1987, granting, on default, defendant’s motion to dismiss the action for lack of personal jurisdiction over defendant, unanimously reversed, to the extent appealed from, on the law and on the facts and in the exercise of discretion, with costs and disbursements, the motion held in abeyance and the matter remanded for a traverse hearing.

Although the motion to dismiss for lack of in personam jurisdiction was granted on default (apparently because plaintiff’s counsel failed to appear for oral argument), without any ratio decidendi being offered, it is clear, as the court itself noted in the order appealed, that it reviewed plaintiffs papers in opposition to the motion. Although the opposing papers did not contain an affidavit of service, counsel’s affirmation, based on personal knowledge, does raise an issue of fact with respect to a purported personal service on defendant. In such circumstances, it was a clear abuse of discretion to dismiss the action on the basis of counsel’s nonappearance at the oral argument. Accordingly, we reverse and remand for a traverse hearing. Concur — Kupferman, J. P., Sullivan, Asch, Milonas and Ellerin, JJ.