McMullen v. Arnone
| Decision Date | 30 March 1981 |
| Citation | 437 N.Y.S.2d 373,79 A.D.2d 496 |
| Parties | Declan McMULLEN, Jr. et al., Respondents, v. Robert ARNONE, Appellant. |
| Court | New York Supreme Court — Appellate Division |
James M. Catterson, Jr., Port Jefferson, for appellant.
Sulsky & Haber, Williston Park (Bernard Meyerson, New York City, of counsel), for respondents.
Before LAZER, J. P., and GIBBONS, GULOTTA and COHALAN, JJ.
In this action to recover damages for assault and malicious prosecution, plaintiffs entered a judgment against defendant upon the latter's default in answering. Defendant's motion to vacate the default judgment was granted upon certain conditions. He has appealed from so much of the order as imposed conditions. For the reasons that follow, we reverse the order insofar as appealed from and grant the motion unconditionally.
On April 14, 1975, while both were employed as teachers at Newfield High School in Selden, New York, plaintiff Declan McMullen and defendant became embroiled in an altercation in the Newfield school corridor. In the aftermath of the dispute, each of the two participants pressed criminal charges against the other, and the ensuing proceedings terminated favorably to the accused in each case. Thereafter the plaintiffs purported to commence this action for assault and malicious prosecution by personal delivery of the summons and verified complaint to the defendant at his home on May 10, 1976. Defendant has maintained throughout, however, that he was never personally served in the action. By letter dated June 9, 1976, counsel for plaintiffs informed defendant of the suit, and on June 17, 1976 defendant's attorney requested and thereafter received a copy of the summons and complaint from opposing counsel. Defendant neither answered nor appeared. On November 27, 1979 Special Term directed that an inquest be held. Defendant did not appear at the inquest, which took place on January 16, 1980, and a judgment in the amount of $57,695 was signed on January 24, 1980.
On April 8, 1980 defendant moved by order to show cause to vacate the judgment pursuant to CPLR 5015 (subd. (a), par. 4) on the ground that he was never personally served in the action, and on July 14, 1980 a traverse hearing was held. At the hearing, the plaintiffs rested their case on the affidavit of service of Edith Simon, dated May 12, 1976, which averred inter alia that she had served the summons and verified complaint on the defendant at his home in Shoreham, New York, on May 10, 1976 at 3:00 P.M. by delivering a true copy to him personally. The prime witness for the defense was the defendant himself, who testified in essence that he had not been at home on the date and at the time of the claimed service, but rather that his teaching duties had kept him at Newfield High School until 2:50 P.M., at which time he drove directly to his second place of employment at A. Anthony Real Estate in Rocky Point, New York, where he customarily worked until 8:30 or nine o'clock in the evening. Defendant denied going to his home before reporting to work at the real estate agency on May 10, 1976 and asserted that he had never been served with process.
In its decision Special Term found that "plaintiffs did not effect proper service pursuant to CPLR § 308, but * * * that the defendant was aware of the institution of the within action," and granted the motion "to the sole extent that the defendant's default shall be vacated on the condition that:
Special Term further ordered that the judgment dated January 24, 1980 "shall stand as security pending the ultimate determination of this action."
On appeal, defendant contends that Special Term erred by imposing conditions on vacatur of the judgment in the face of its finding that proper service of process had not taken place. Plaintiffs counterargue that the finding with respect to service was an apparent "misstatement" by the court and that the general tenor of the decision "shows that the Court definitely considered that the defendant was properly served and that defendant never intended to defend the action." Defendant should prevail.
There is no basis in the record for the plaintiffs' assertion that Special Term lapsed into "misstatement" when it found that personal service had not been effected. The hearing evidence presented a...
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