Fardin v. 61ST Woodside Assocs.

• Decision Date: 04 February 2015
• Citation: 2015 N.Y. Slip Op. 00841,3 N.Y.S.3d 101,125 A.D.3d 593
• Parties: Kazi FARDIN, etc., et al., respondents, v. 61ST WOODSIDE ASSOCIATES, et al., appellants.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 593

3 N.Y.S.3d 101

2015 N.Y. Slip Op. 00841

Kazi FARDIN, etc., et al., respondents,

v.61ST WOODSIDE ASSOCIATES, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 4, 2015

Affirmed.

Bernard Ouziel, Great Neck, N.Y., for appellants.

PETER B. SKELOS, J.P., MARK C. DILLON, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), entered April 30, 2013, as denied their motion, in effect, for leave to reargue and renew their prior motion to vacate a judgment entered September 23, 2008, which, upon an order of the same court dated November 29, 2006, granting the plaintiffs' unopposed motion for leave to enter judgment against them on the issue of liability upon their failure to appear or answer the complaint, and after an inquest, was in favor of the plaintiffs and against them in the principal sum of $900,000.

ORDERED that the appeal from so much of the order entered April 30, 2013, as denied that branch of the defendants' motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered April 30, 2013, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiffs were tenants in an apartment building located at 61–09 39th Avenue in Woodside, owned by the defendant 61st Woodside Associates and managed by the defendant Sarva Management Corporation (hereinafter together the defendants). In July 2006, after the infant plaintiff was found to have elevated blood lead levels, the plaintiffs commenced this action. An affidavit of service indicated that the defendant 61st Woodside Associates, a partnership, was served with the summons and complaint by delivery to Wilson Guerrero, the general agent of the partnership. A separate affidavit of service indicated that the defendant Sarva Management Corporation was served via delivery of the summons and complaint to an agent in the Office of the New York Secretary of State. The defendants failed to appear in the action, interpose an answer, or otherwise move with respect to the complaint. In an order dated November 29, 2006, the Supreme Court granted the plaintiffs' unopposed motion for a default judgment against the defendants. An inquest on damages was conducted on January 28, 2008, but no representative from either of the defendants was present. The Supreme Court awarded damages to the plaintiffs in the principal sum of $900,000. A judgment was entered on September 23, 2008, in favor of the plaintiffs and against the defendants in the principal sum of $900,000. In October 2011, the defendants, inter alia, moved pursuant to CPLR 5015(a)(4) to vacate the judgment, alleging that they had not been properly served with the summons and complaint. A hearing to determine the validity of service of process was held on September 28, 2012, at which the Supreme Court heard testimony from both process servers. Although the plaintiffs subpoenaed Wilson Guerrero and Ramesh Sarva, the defendants' principal, they failed to appear. In an order dated October 10, 2012, the...