Werner v. Schweit

Appellate Division of the Supreme Court of New York

Werner v. Schweit

138 A.D.2d 592, 526 N.Y.S.2d 175, 1988 N.Y. App. Div. LEXIS 3093

Appellate Division of the Supreme Court of the State of New York·Decided March 21, 1988·Published·Cited by 6 cases

Opinion

In an action to recover moneys allegedly due and owing for medical services and room and board provided to the defendant, the plaintiff appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), dated March 23, 1987, which, after a hearing, granted the defendant’s motion to vacate a default judgment.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that the mere slipping of the papers between the screen door and the doorjamb was not a proper "affixing” as required by the statute. "The affixing of a summons to the door is to be accomplished by use of a nail, tack, tape, rubber band or some other device which will ensure a genuine adherence” (PacAmor Bearings v Foley, 92 AD2d 959, 960, citing Siegel, NY Prac § 74).

Accordingly, the Supreme Court properly vacated the default judgment on the basis that service was ineffective due to the improper "affixing”. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur.

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In an action to recover moneys allegedly due and owing for medical services and room and board provided to the defendant, the plaintiff appeals from an order of the Supreme Court, Nassau County (Widlitz, J.), dated March 23, 1987, which, after a hearing, granted the defendant’s motion to vacate a default judgment.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that the mere slipping of the papers between the screen door and the doorjamb was not a proper "affixing” as required by the statute. "The affixing of a summons to the door is to be accomplished by use of a nail, tack, tape, rubber band or some other device which will ensure a genuine adherence” (PacAmor Bearings v Foley, 92 AD2d 959, 960, citing Siegel, NY Prac § 74).

Accordingly, the Supreme Court properly vacated the default judgment on the basis that service was ineffective due to the improper "affixing”. Lawrence, J. P., Eiber, Harwood and Balletta, JJ., concur.

Werner v. Schweit, 138 A.D.2d 592, 526 N.Y.S.2d 175, 1988 N.Y. App. Div. LEXIS 3093 (N.Y. Ct. App. 1988).

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Opinion

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