Lattingtown Harbor Property Owners Association, Inc. v. Agostino

• Decision Date: 14 November 2006
• Docket Number: 2005-05576.,2005-11164.,2005-08218.,2005-05577.,2005-03786.
• Parties: LATTINGTOWN HARBOR PROPERTY OWNERS ASSOCIATION, INC., Respondent, v. DOMINICK AGOSTINO, Appellant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 536

825 N.Y.S.2d 86

2006 NY Slip Op 08219

LATTINGTOWN HARBOR PROPERTY OWNERS ASSOCIATION, INC., Respondent, v. DOMINICK AGOSTINO, Appellant.

2005-03786.

2005-05576.

2005-05577.

2005-08218.

2005-11164.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided November 14, 2006.

In an action, inter alia, to permanently enjoin the defendant from erecting structures on his property in violation of certain restrictive covenants, the defendant appeals (1) from an order of the Supreme Court, Nassau County (Ayres, J.), entered March 18, 2005, which, after a hearing to determine the validity of service of process, denied his motion to dismiss the complaint for lack of personal jurisdiction (2), as limited by his brief, from so much of an order of the same court (Ayres, J.) entered May 23, 2005, as, upon reargument, adhered to the prior determination, (3) from an order of the same court (Joseph, J.) entered May 24, 2005, which granted the plaintiff's motion for a preliminary injunction enjoining him from erecting any "piers, fencing or gates" on his property (4), as limited by his brief, from so much of an order of the same court (Joseph, J.) entered August 1, 2005, as denied that branch of his motion which was for leave to renew his opposition to the prior motion for a preliminary injunction and, upon reargument, adhered to the prior determination granting the motion for a preliminary injunction, and (5), as limited by his brief, from so much of an order of the same court (Joseph, J.) entered October 25, 2005, as denied that branch of his motion which was to compel further discovery.

Ordered that the appeals from the orders entered March 18, 2005, and May 24, 2005 are dismissed as superseded by the orders entered May 23, 2005 and August 1, 2005, respectively, made upon reargument; and it is further,

Ordered that orders entered May 23, 2005, August 1, 2005, and October 25, 2005, are affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff homeowners' association commenced this action, inter alia, to enjoin the defendant from erecting "piers, fencing or gates" on his property. The defendant's property is located within the confines of a single-family home residential community, all of which properties are part of a common scheme, encumbered by restrictive covenants in an amended declaration. The amended declaration requires that a homeowner obtain permission for the construction of "any structure" and "fences of any kind."

Contrary to the defendant's contention, the court properly determined that the plaintiff acquired jurisdiction over the defendant through proper service of process. While the court framed the issue in its oral decision, after the traverse hearing as one of credibility, and discussed various factors that it considered in making its determination, it is clear that the court employed the correct legal standard in assessing whether the defendant was properly served. "A process server's sworn affidavit of service ordinarily constitutes prima facie evidence of proper service pursuant to CPLR 308 (2)" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343, 343-344 [2003]). In this case, the defendant's wife rebutted the process server's affidavit with an affidavit stating that she had not been served, and was thus entitled to a hearing to determine the validity of service of process where the plaintiff had the burden to establish jurisdiction by a preponderance of the evidence (id. at 344).

When there is conflicting evidence, a credibility determination is necessary (see Home Fed. Sav. Bank v Mahood, 260 AD2d 438, 439 [1999]). "The hearing co...