Wilmington Sav. Fund Socy., FSB v. Virgin

Appellate Division of the Supreme Court of New York

Wilmington Sav. Fund Socy., FSB v. Virgin

Appellate Division of the Supreme Court of the State of New York·Decided July 9, 2026·No. Index No. 381517/10|Appeal No. 7037|Case No. 2025-02245|·Published

Opinion

Wilmington Sav. Fund Socy., FSB v Virgin - 2026 NY Slip Op 04389

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Law Reporting
Bureau Thomas J.K. Smith, State Reporter

Wilmington Sav. Fund Socy., FSB v Virgin

2026 NY Slip Op 04389

July 9, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Wilmington Savings Fund Society, FSB, Plaintiff-Appellant,

v

Joan Virgin, Defendant-Respondent, Yvonne Walker, et al., Defendants.

Decided and Entered: July 09, 2026

Index No. 381517/10|Appeal No. 7037|Case No. 2025-02245|

Before: Webber, J.P., Kennedy, Friedman, González, Shulman, JJ.

Knuckles & Manfro, LLP, Tarrytown (John E. Brigandi of counsel), for appellant.

[*1]

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about April 4, 2025, which, to the extent appealed from as limited by the briefs, granted defendant Joan Virgin's motion to dismiss the complaint based on lack of personal jurisdiction or, in the alternative, to vacate her default or extend her time to serve an answer, to the extent of directing a traverse hearing to determine whether defendant was properly served, unanimously affirmed, without costs.

The assertions by Virgin's son, who was identified in the affidavit of service as having accepted delivery of the summons and complaint, that he did not match the process server's description of him were not, by themselves, sufficient to warrant a hearing. The server described the son as a 35-year-old Black male between five feet, eight inches and 5 feet, 11 inches. The son attested in support of Virgin's motion that he was five feet, five inches and, at the time of service, 31 years old. These discrepancies, were not sharp enough to warrant a hearing (see HSBC Bank USA, N.A. v Proctor, 232 AD3d 439, 439-440 [1st Dept 2024]). This was particularly so given that plaintiff produced a copy of the son's driver's license, which stated that he was five feet, seven inches — only an inch shorter than the height range the process server identified.

However, Virgin otherwise adequately rebutted service to warrant a traverse hearing. According to the affidavit of service, the process server delivered the summons and complaint to Virgin's son on November 26, 2019, at 8:48 p.m., at Virgin's home. Her son's affidavit attested to the fact that, at the time of the purported service, he was not at the subject property but attending a class, which started at 6:00 p.m. that day. These statements were sufficiently nonconclusory to warrant a traverse hearing (see JP Morgan Chase Bank v Dennis, 166 AD3d 530, 531 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: July 9, 2026

Links to or from other sites do not signify endorsement or relationship with them.

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Wilmington Sav. Fund Socy., FSB v Virgin - 2026 NY Slip Op 04389

skip to main content

It appears you are using Adblock. Please disable Adblock to best experience our website.

Law Reporting
Bureau Thomas J.K. Smith, State Reporter

Wilmington Sav. Fund Socy., FSB v Virgin

2026 NY Slip Op 04389

July 9, 2026

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Wilmington Savings Fund Society, FSB, Plaintiff-Appellant,

v

Joan Virgin, Defendant-Respondent, Yvonne Walker, et al., Defendants.

Decided and Entered: July 09, 2026

Index No. 381517/10|Appeal No. 7037|Case No. 2025-02245|

Before: Webber, J.P., Kennedy, Friedman, González, Shulman, JJ.

Knuckles & Manfro, LLP, Tarrytown (John E. Brigandi of counsel), for appellant.

[*1]

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about April 4, 2025, which, to the extent appealed from as limited by the briefs, granted defendant Joan Virgin's motion to dismiss the complaint based on lack of personal jurisdiction or, in the alternative, to vacate her default or extend her time to serve an answer, to the extent of directing a traverse hearing to determine whether defendant was properly served, unanimously affirmed, without costs.

The assertions by Virgin's son, who was identified in the affidavit of service as having accepted delivery of the summons and complaint, that he did not match the process server's description of him were not, by themselves, sufficient to warrant a hearing. The server described the son as a 35-year-old Black male between five feet, eight inches and 5 feet, 11 inches. The son attested in support of Virgin's motion that he was five feet, five inches and, at the time of service, 31 years old. These discrepancies, were not sharp enough to warrant a hearing (see HSBC Bank USA, N.A. v Proctor, 232 AD3d 439, 439-440 [1st Dept 2024]). This was particularly so given that plaintiff produced a copy of the son's driver's license, which stated that he was five feet, seven inches — only an inch shorter than the height range the process server identified.

However, Virgin otherwise adequately rebutted service to warrant a traverse hearing. According to the affidavit of service, the process server delivered the summons and complaint to Virgin's son on November 26, 2019, at 8:48 p.m., at Virgin's home. Her son's affidavit attested to the fact that, at the time of the purported service, he was not at the subject property but attending a class, which started at 6:00 p.m. that day. These statements were sufficiently nonconclusory to warrant a traverse hearing (see JP Morgan Chase Bank v Dennis, 166 AD3d 530, 531 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: July 9, 2026

Links to or from other sites do not signify endorsement or relationship with them.

Wilmington Sav. Fund Socy., FSB v. Virgin, (N.Y. Ct. App. 2026).

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