Community State Bank v. Haakonson
| Decision Date | 05 May 1983 |
| Citation | 463 N.Y.S.2d 105,94 A.D.2d 838 |
| Parties | COMMUNITY STATE BANK, Respondent, v. Paul HAAKONSON, Appellant, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Eidens & Dickson, Schenectady (Eric J. Dickson, Schenectady, of counsel), for appellant.
Nolan & Heller, Albany (Diane H. Rosenbaum, Albany, of counsel), for respondent.
Before SWEENEY, J.P., and MAIN, CASEY and YESAWICH, JJ.
Appeal from an order of the Supreme Court at Special Term, entered May 11, 1982 in Saratoga County, which vacated a default judgment against defendant Paul Haakonson upon certain conditions.
When, in September, 1972, defendant and his former wife, who is not a party to this appeal, obtained a loan from plaintiff represented by a promissory note, they were living together in Mechanicville, New York. Later that year defendant and his wife parted; he thereafter resided exclusively in an apartment located over his former place of business at 156 Jay Street in Schenectady, New York.
In January, 1973, defendant defaulted on the note. The following June he was served pursuant to the "nail and mail" provisions of CPLR 308 (subd. 4) at the Mechanicville address he had listed on the promissory note. After defendant and his former wife separated he had no further communications with her and she remained at the Mechanicville residence only until late 1973.
Plaintiff obtained its default judgment on August 27, 1973. In an attempt to collect on its judgment plaintiff, proceeding pursuant to CPLR 5227, secured an order requiring the Lutheran Brotherhood, a former employer of defendant, to turn over to plaintiff residual royalties due defendant as an insurance agent. During the period from March 1974 through August 1975, $667.17 was amassed. Although defendant had not worked for this employer since 1970, he had periodically received royalties from the organization.
Defendant swears he first became aware of the judgment's existence in August, 1981, when he was served with an information subpoena. By order to show cause dated September 23, 1981, he moved to vacate the default claiming that personal jurisdiction over him was lacking because of improper service of process. Special Term granted the motion upon condition defendant file an answer within 20 days and waive any defense based upon the Statute of Limitations; the judgment was allowed to stand as security pending final disposition of the action on the merits.
In his moving affidavits, defendant avers that he had departed the Mechanicville residence, and never returned, following separation from his wife some six months prior to the service of process. Relying on Feinstein v. Bergner 48 N.Y.2d 234, 422 N.Y.S.2d 356, 397 N.E.2d 1161, Special Term concluded, and we agree, that service was ineffective because the place where "nail and mail" service occurred was not defendant's "usual place of abode". Personal jurisdiction not having been acquired, the subsequently granted default judgment was a nullity and Special Term's attempt to exercise discretion pursuant to CPLR 5015 was ineffectual, for it was without authority to take any action other than to dismiss the complaint (Mayers...
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