Norwest Bank Minnesota, N. A. v. Galasso

Appellate Division of the Supreme Court of New York

Norwest Bank Minnesota, N. A. v. Galasso

275 A.D.2d 400, 712 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 8797

Appellate Division of the Supreme Court of the State of New York·Decided August 21, 2000·Published·Cited by 3 cases

Opinion

—In an action to foreclose a mortgage, the defendant Philip Galasso, s/h/a as John Doe, appeals from an order of the Supreme Court, Nassau County (Dunne, J.), entered August 12, 1999, which denied his motion to dismiss the complaint insofar as asserted against him.

Ordered that the order is reversed, as an exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the purpose of holding a hearing on the issue of whether personal jurisdiction was obtained over the appellant and thereafter for a new determination of his motion.

The appellant’s sworn statement that no summons and com[401]*401plaint appeared on his door on May 14, 1999, sufficiently refuted the process server’s affidavit stating that the service was properly accomplished pursuant to CPLR 308 (4). Accordingly, a hearing should have been held (see, Hopkins v Tinghino, 248 AD2d 794).

The appellant’s remaining contentions are without merit. Mangano, P. J., O’Brien, Sullivan and H. Miller, JJ., concur.

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—In an action to foreclose a mortgage, the defendant Philip Galasso, s/h/a as John Doe, appeals from an order of the Supreme Court, Nassau County (Dunne, J.), entered August 12, 1999, which denied his motion to dismiss the complaint insofar as asserted against him.

Ordered that the order is reversed, as an exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the purpose of holding a hearing on the issue of whether personal jurisdiction was obtained over the appellant and thereafter for a new determination of his motion.

The appellant’s sworn statement that no summons and com[401]*401plaint appeared on his door on May 14, 1999, sufficiently refuted the process server’s affidavit stating that the service was properly accomplished pursuant to CPLR 308 (4). Accordingly, a hearing should have been held (see, Hopkins v Tinghino, 248 AD2d 794).

The appellant’s remaining contentions are without merit. Mangano, P. J., O’Brien, Sullivan and H. Miller, JJ., concur.

Norwest Bank Minnesota, N. A. v. Galasso, 275 A.D.2d 400, 712 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 8797 (N.Y. Ct. App. 2000).

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275 A.D.2d 400 (Norwest Bank Minnesota, N. A. v. Galasso) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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