Kambour v. Farrar
| Decision Date | 03 December 1992 |
| Parties | Roger P. KAMBOUR et al., Respondents, v. Sarah FARRAR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Donohue, Sabo, Varley & Armstrong, P.C. (Kenneth Varley, of counsel), Albany, for appellant.
Roemer & Featherstonhaugh, P.C. (Matthew J. Kelly, of counsel), Albany, for respondents.
Before MIKOLL, J.P., and YESAWICH, MAHONEY and HARVEY, JJ.
Appeal from an order of the Supreme Court (Kahn, J.), entered February 3, 1992 in Albany County, which, upon renewal, vacated its prior order granting defendant's motion to vacate a default judgment entered against her.
Defendant moved to dismiss a default judgment entered against her on the ground that, among other things, service on her was improper. After holding a hearing on the issue of personal jurisdiction, Supreme Court vacated the default judgment finding that service was in fact improper. Supreme Court subsequently granted a renewal motion by plaintiffs, vacated its prior order and reinstated the default judgment against defendant. Supreme Court determined that when it granted defendant's motion to vacate it did so because it relied on defendant's testimony that, although she owned a house on Maple Lane in the Town of Colonie, Albany County, she lived in Massachusetts. As such, any attempt at serving her at the Maple Lane address would not establish personal jurisdiction. The court now decided that the new information, a motor vehicle abstract indicating defendant's address as 4 Maple Lane, established that she did use that address as her residence. It then decided that sufficient attempts to serve defendant personally at that address had been made and, when unsuccessful, the use of substituted service pursuant to CPLR 308(4) was warranted.
Defendant initially contends that Supreme Court improperly granted plaintiffs' motion for renewal. We agree. A motion to renew should only be granted if, in addition to showing new facts, the moving party sets forth a justifiable excuse for not putting those facts before the court in the first instance (see, Zebrowski v. Kitchens, 172 A.D.2d 972, 568 N.Y.S.2d 242; Lansing Research Corp. v. Sybron Corp., 142 A.D.2d 816, 819, 530 N.Y.S.2d 698). Plaintiffs claim that at the hearing they were given access to bank records which, after further investigation, revealed that defendant had a driver's license listing her address as 4 Maple Lane. The new fact claimed by plaintiffs was the motor vehicle abstract. While this new information may have shed some light on the issue of personal jurisdiction, especially because of defendant's claim and Supreme Court's finding that defendant actually lived in Massachusetts, plaintiffs failed to provide...
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...a justifiable excuse for not presenting this readily available information and argument in his petition (see, Kambour v. Farrar, 188 A.D.2d 719, 719-720, 590 N.Y.S.2d 586). Lastly, given the substantial deference accorded disciplinary determinations in police matters (see, Trotta v. Ward, 7......
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Table of Cases
...(Sup Ct Queens Co 2002), §§1:195, 1:334 Kalkan v. Nyack Hospital , 227 AD2d 382, 642 NYS2d 74 (2d Dept 1996), §3:525 Kambour v. Farrar , 188 A.D.2d 719, 590 NYS2d 586 (3rd Dept 1992), §§16:331, 37:691 Kam Hampton I Realty Corp. v. Travertine Corp. , 242 AD2d 679, 664 NYS2d 945 (2d Dept 1997......
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Table of Cases
...(Sup Ct Queens Co 2002), §§1:195, 1:334 Kalkan v. Nyack Hospital , 227 AD2d 382, 642 NYS2d 74 (2d Dept 1996), §3:525 Kambour v. Farrar , 188 A.D.2d 719, 590 NYS2d 586 (3rd Dept 1992), §§16:331, 37:691 Kam Hampton I Realty Corp. v. Travertine Corp. , 242 AD2d 679, 664 NYS2d 945 (2d Dept 1997......
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Summary Judgment
...or • There was a justifiable excuse for not bringing the evidence to the court’s attention on the original motion [ Kambour v. Farrar , 188 A.D.2d 719, 590 NYS2d 586 (3rd Dept 1992)]; and • He or she could not, with reasonable diligence, have discovered the evidence for presentation on the ......
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Summary Judgment
...or • There was a justifiable excuse for not bringing the evidence to the court’s attention on the original motion [ Kambour v. Farrar , 188 A.D.2d 719, 590 NYS2d 586 (3rd Dept 1992)]; and 37-65 summarY JudgmeNt §37:702 • He or she could not, with reasonable diligence, have discovered the ev......