Percia v. Cascone

Appellate Division of the Supreme Court of New York

Percia v. Cascone

116 A.D.2d 557, 498 N.Y.S.2d 310, 1986 N.Y. App. Div. LEXIS 51412

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 1986

StatusPublished

This text of 116 A.D.2d 557 (Percia v. Cascone) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Percia v. Cascone, 116 A.D.2d 557, 498 N.Y.S.2d 310, 1986 N.Y. App. Div. LEXIS 51412 (N.Y. Ct. App. 1986).

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Opinion

— In an action to foreclose a mortgage, defendants appeal from an order of the Supreme Court, Richmond County (Kuffner, J.), dated July 9, 1984, which, inter alia, granted plaintiffs motion for summary judgment and denied their cross motion for summary judgment dismissing the complaint for lack of personal jurisdiction.

Order affirmed, with costs.

After a traverse hearing, it was adjudged that service of the summons and complaint upon defendants, pursuant to CPLR 308 (4), was proper. We agree. The evidence adduced at the traverse hearing established that the process server exercised due diligence in attempting to serve defendants in accordance with the provisions of CPLR 308 (1) and (2) prior to resorting to "nail-and-mail service”.

We find that the affidavit, affirmations and documentary [558]*558proof submitted by plaintiff were sufficient to establish a prima facie entitlement to summary judgment. Although defendants are correct in asserting that summary judgment must be denied to a plaintiff if the motion papers reveal a meritorious unpleaded defense (see, Gem Grywall Corp. v Scialdo & Sons, 34 AD2d 1063, 1064; Furlo v Cheek, 20 AD2d 939, 940), the papers submitted in opposition do not disclose such a defense, nor do they raise triable issues of fact sufficient to defeat plaintiff’s motion for summary judgment. Lazer, J. P., Rubin, Kunzeman and Kooper, JJ., concur.

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— In an action to foreclose a mortgage, defendants appeal from an order of the Supreme Court, Richmond County (Kuffner, J.), dated July 9, 1984, which, inter alia, granted plaintiffs motion for summary judgment and denied their cross motion for summary judgment dismissing the complaint for lack of personal jurisdiction.

Order affirmed, with costs.

After a traverse hearing, it was adjudged that service of the summons and complaint upon defendants, pursuant to CPLR 308 (4), was proper. We agree. The evidence adduced at the traverse hearing established that the process server exercised due diligence in attempting to serve defendants in accordance with the provisions of CPLR 308 (1) and (2) prior to resorting to "nail-and-mail service”.

We find that the affidavit, affirmations and documentary [558]*558proof submitted by plaintiff were sufficient to establish a prima facie entitlement to summary judgment. Although defendants are correct in asserting that summary judgment must be denied to a plaintiff if the motion papers reveal a meritorious unpleaded defense (see, Gem Grywall Corp. v Scialdo & Sons, 34 AD2d 1063, 1064; Furlo v Cheek, 20 AD2d 939, 940), the papers submitted in opposition do not disclose such a defense, nor do they raise triable issues of fact sufficient to defeat plaintiff’s motion for summary judgment. Lazer, J. P., Rubin, Kunzeman and Kooper, JJ., concur.

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Bluebook (online)

116 A.D.2d 557, 498 N.Y.S.2d 310, 1986 N.Y. App. Div. LEXIS 51412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/percia-v-cascone-nyappdiv-1986.

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