Venneri v. Gallo

23 A.D.3d 376, 805 N.Y.S.2d 555

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 2005
• Status: Published

Opinion

In an action to recover on promissory notes, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Held, J.), dated November 10, 2004, which granted the motion of the defendant Philip Farinacci to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction, and dismissed the complaint insofar as asserted against that defendant.

Ordered that the order and judgment is affirmed, with costs.

The defendant Philip Farinacci moved to vacate his default in answering the complaint and to dismiss the complaint insofar as asserted against him for lack of personal jurisdiction. In support of his motion, Farinacci presented unrebutted evidence that the address at which service was made upon him pursuant to CPLR 308 (4) was not his “actual place of business” (see Katz v Emmett, 226 AD2d 588, 589 [1996]). In opposition, the plaintiff failed to demonstrate, inter alia, that Farinacci should be estopped from arguing that fact (see Tahmisyan v City of New York, 295 AD2d 600, 601 [2002]). Thus, Farinacci’s motion was properly granted. Florio, J.P., Crane, Ritter and Lifson, JJ., concur.