Bartow v. Lugo
| Citation | 887 N.Y.S.2d 678,66 A.D.3d 936,2009 NY Slip Op 7780 |
| Decision Date | 27 October 2009 |
| Docket Number | 2008-11423. |
| Parties | SCOTT BARTOW et al., Appellants, v. EDGAR LUGO et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court Appellate Division |
Ordered that the order and judgment is affirmed, with costs.
The defendants Edgar Lugo and Minerva Lugo (hereinafter the respondents) moved, inter alia, to dismiss the complaint insofar as asserted against them on the ground that they were not properly served with process. The process server's affidavits stated that service of process had been effectuated upon each respondent, inter alia, by delivering copies of the summons and complaint to a female relative of suitable age and discretion living at the respondents' residence, who was identified as Rene Lugo. However, the respondents asserted that the only female relative who lived in their home did not match the description of the female relative provided in the affidavits of service. At a hearing to determine the validity of service of process, the process server testified with respect to the contents of the affidavits of service and his own record, but admitted that he had no independent recollection of the service in question. The defendant Minerva Lugo testified that no legal papers were delivered to her home on the date in question, and that the only other female residing at her home on that date was her 11-year-old daughter Alyssa Lugo. Additionally, Alyssa Lugo testified that she had never seen the process server before.
In reviewing a determination made by a hearing court, the power of the Appellate Division is as broad as that of the hearing court and it may render the determination it finds warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; ...
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