New York State Higher Educ. Services Corp. v. Palmeri
| Decision Date | 29 November 1990 |
| Citation | 563 N.Y.S.2d 358,167 A.D.2d 797 |
| Parties | , 64 Ed. Law Rep. 1166 NEW YORK STATE HIGHER EDUCATION SERVICES CORPORATION, Respondent, v. Joseph PALMERI, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph Palmeri, Brooklyn, in pro. per.
George L. Sarachan, Albany, for respondent.
Before KANE, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from an order of the Supreme Court (Kahn, J.), entered January 2, 1990 in Albany County, which, inter alia, granted plaintiff's cross motion for summary judgment.
The threshold question presented on this appeal is whether Supreme Court properly found that personal jurisdiction was acquired over defendant in this action brought to recover moneys allegedly due plaintiff upon defendant's default in payment under the provisions of a student loan agreement.
In our view the affidavits of defendant raise a question of fact as to whether defendant was personally served with the summons and complaint on February 13, 1989 at his Brooklyn residence as alleged in the affidavit of the process server. Defendant's answer interposed the defense of a general denial and separate affirmative defenses of lack of personal jurisdiction over defendant and that the claim is barred by expiration of the six-year Statute of Limitations. Subsequently, defendant moved for dismissal based on the expiration of the Statute of Limitations. Plaintiff cross-moved for summary judgment on the merits and for dismissal of the affirmative defense of lack of personal jurisdiction and the bar of the Statute of Limitations. Plaintiff also requested that counsel fees be assessed and awarded pursuant to the provisions of the student loan agreement. Supreme Court found that the action was timely commenced and that personal jurisdiction was acquired. It assessed and awarded counsel fees in the amount of $1,300. This appeal ensued.
Defendant asserts in his affidavits that he received the summons and complaint herein by mail on March 29, 1989, that he was never personally served with the summons, that the person described as being served in the affidavit of the process server was "obviously not me". Defendant further asserted that While the documentary evidence of defendant's alleged presence in Florida may be viewed as equivocal and questionable support for defendant's position that he was not at his residence at the time the process server alleged, nevertheless his opposing affidavits create a credibility issue which should be resolved at a traverse hearing (see, Dzembo v. Goran, 163 A.D.2d 723, 558 N.Y.S.2d 715; see also, Anello...
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