Dunn v. Burns
| Decision Date | 06 July 2007 |
| Docket Number | CA 05-01711. |
| Citation | 42 A.D.3d 884,839 N.Y.S.2d 894,2007 NY Slip Op 05850 |
| Parties | GAIL T. DUNN et al., Respondents, v. LEIGHTON R. BURNS, as Administrator of the Estate of SALIM MANSOUR BRAICK, M.D., Deceased, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Oneida County (Robert F. Julian, J.), entered September 28, 2004. The order denied defendant's motion to vacate the default judgment entered February 3, 2004 and to compel plaintiffs to accept service of the answer.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the judgments entered February 3, 2004 and March 31, 2004 are vacated and plaintiffs are directed to accept service of the answer sworn to May 28, 2004.
Salim Mansour Braick, M.D. (decedent) was a board certified physician specializing in obstetrics and gynecology who treated Gail T. Dunn (plaintiff) during the year 2001. In September 2002 plaintiff requested her file from decedent and, in August 2003, plaintiffs' attorney sent decedent a letter informing him that his treatment of plaintiff was a departure from the standard of care and the proximate cause of injuries sustained by plaintiff. In the letter, plaintiffs' attorney asked decedent to provide a copy of the letter to his insurance carrier and asked decedent to contact plaintiffs' attorney or to have his attorney do so. Decedent mailed the letter to his insurance company but, by letter dated August 26, 2003, decedent's insurance company disclaimed coverage.
Plaintiffs commenced this medical malpractice action on December 2, 2003. On December 22, 2003, a process server delivered a copy of the summons and complaint to decedent's "common law" wife at the home where decedent had resided for the past 15 years with his "common law" wife and children. Second copies of the summons and complaint were then mailed to that same address. Decedent did not respond to the summons and complaint.
Supreme Court granted plaintiffs' motion for a default judgment, and the judgment was entered February 3, 2004. It is undisputed that the default judgment was entered prematurely inasmuch as the time within which decedent had to answer the complaint or to appear did not expire until February 9, 2004. Thus, at the time the default judgment was entered, decedent was not yet in default. As plaintiffs correctly concede, the initial default judgment is a "nullity."
By the premature default judgment, the court adjudged that plaintiffs are entitled to judgment against decedent and scheduled a hearing on damages. Decedent was given no notice of that hearing, and a second default judgment was entered on March 31, 2004, awarding plaintiffs damages in the amount of $820,000.
By order to show cause filed on May 6, 2004, decedent moved to vacate the first default judgment and to compel plaintiffs to accept service of his answer. We conclude that the court erred in denying that motion. We note that decedent died following entry of the order denying his motion, and the administrator of decedent's estate has been substituted as the defendant.
Contrary to defendant's contention, the court had personal jurisdiction over decedent. CPLR 308 (2) permits substituted service by delivery of the summons and complaint "to a person of suitable age and discretion at the actual place of business dwelling place or usual place of abode of the person to be served" and by mailing a copy by first class mail to, inter alia, the person's "last known residence." Here, plaintiffs complied with CPLR 308 (2) and thus the court had personal jurisdiction over decedent. Although decedent had become employed in the United Arab Emirates and contended that he had moved there permanently as of August 19, 2003, he failed to establish an intent to reside there permanently. Indeed, he never provided the court with an address for a...
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Watson v. City of N.Y.
...prematurely because the time to answer has not expired, the judgment is a nullity and must be vacated (see Dunn v. Burns, 42 A.D.3d 884, 886, 839 N.Y.S.2d 894 [4th Dept. 2007] ). CPLR 308(2) states that service thereunder is not complete until 10 days after the filing of the affidavit of se......
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Rana v. Islam
...at the defendant's former residence, to which he still had access." (Pl.'s Surreply at 3.) For example, Rana cites Dunn v. Burns, 42 A.D.3d 884, 885-86 (4th Dep't 2007), in support of his position. In that case, the Appellate Division found service proper when the plaintiff served the defen......
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United States v. Mellon
...wife at the defendant's former house, even though the defendant had permanently relocated to another state); Dunn v. Burns, 839 N.Y.S.2d 894, 896 (4th Dep't 2007) (finding that service on the defendant's common law wife in the U.S. was proper even though the defendant worked in the United A......
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