Anton v. Amato
| Decision Date | 14 May 1984 |
| Parties | Frank J. ANTON, Respondent, v. Joseph AMATO, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Michael M. Platzman, New York City, for appellant.
Arnold P. Azarow, Westbury, for respondent.
Before BRACKEN, J.P., and O'CONNOR, WEINSTEIN and NIEHOFF, JJ.
MEMORANDUM BY THE COURT.
In an action to recover a debt secured by a bond and mortgage on certain real property, defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County, entered October 13, 1982, as denied his motion to vacate a default judgment and to dismiss the complaint for lack of personal jurisdiction and held that service of process was properly made upon him.
Order reversed insofar as appealed from, and matter remitted to Special Term for a new traverse hearing, with costs to abide the event.
Defendant Amato moved to vacate a default judgment on the ground that he had not been personally served with a summons in the action. Annexed to defendant's motion papers were copies of a summons and verified complaint and an affidavit of service alleging that he had been personally served on November 14, 1975, at 1:15 P.M., at 130-02 150th Street, South Ozone Park, Queens, N.Y.; the affidavit described the person served as a white male with black hair, approximately 35 years old, 5 feet, 10 inches tall, and weighing 175 pounds. However, defendant alleged in his affidavit that he had "no recollection of ever receiving a summons in this action and * * * it had not been served upon [him] personally". While admitting that he had lived at the South Ozone Park address at the time of the execution of the contract giving rise to the obligation upon which this action was based, he alleged that he had moved to New Jersey in 1976 (which is not inconsistent with the affidavit of service), and that he had lived in Staten Island and New Jersey at the time that the events alleged in the moving papers had taken place. Defendant failed to allege with any greater specificity the dates on which he had moved.
Despite its characterization of defendant's claim of defective service as "questionable at best", Special Term, directed that a traverse hearing be held on the motion. At the hearing, plaintiff's attorney indicated, inter alia, that the process server could not be in court that day. Counsel therefore rested on the affidavit of service. Defendant testified, in apparent contradiction to his affidavit, that he had moved from Queens to New Jersey in or about September, 1975, although he had continued to conduct business out of the Queens location through the summer of 1976. Defendant denied having been served with a summons and complaint in November, 1975. He testified that at the time of the alleged service, he was about 45...
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...of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing (Anton v. Amato, 101 A.D.2d 819, 475 N.Y.S.2d 298; De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823, 472 N.Y.S.2d 414 affd. 67 N.Y.2d 875, 501 N.Y.S.2d 801, 492 N.E.2d 1217 [1......
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Harbor Tech LLC v. Correa
...part the production of the process server for, inter alia , cross-examination by the party denying receipt. Anton v. Amato , 101 A.D.2d 819, 820, 475 N.Y.S.2d 298 (2nd Dept. 1984). In the absence of a specific limitation of issues in a traverse hearing by the order directing a traverse hear......
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Kaszovitz v. Weiszman
...proper service had been made upon him. The court did not address his claim that due diligence had not been shown. In Anton v. Amato, 101 A.D.2d 819, 820-21, 475 N.Y.S.2d 298, this court "Where a process server dies prior to such a [traverse] hearing, his affidavit of service, if not conclus......
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Laurenzano v. Laurenzano
...found the defense testimony to "be unworthy of belief", and this determination is entitled to great weight (see, Anton v. Amato, 101 A.D.2d 819, 820, 475 N.Y.S.2d 298). Indeed, where the evidence presents a "clear choice of polar opposites on the question of service, and the court resolved ......