Santiago v. Honcrat

• Decision Date: 14 December 2010
• Citation: 79 A.D.3d 847,912 N.Y.S.2d 419
• Parties: Kevin SANTIAGO, respondent, v. Junise HONCRAT, appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 419 79 A.D.3d 847 Kevin SANTIAGO, respondent, v. Junise HONCRAT, appellant. Supreme Court, Appellate Division, Second Department, New York. Dec. 14, 2010.

Sarno & DeFelice, LLC, New York, N.Y. (James A. DeFelice of counsel), for appellant.

Jacoby & Meyers, LLP, Newburgh, N.Y. (Finkelstein & Partners, LLP [Andrew L. Spitz], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 28, 2009, which, after a hearing, denied her motion, in effect, pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court entered May 20, 2005, upon her failure to appear or answer, on the ground that the court lacked jurisdiction to render a judgment, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, and pursuant to CPLR 5015(a)(1) to vacate the judgment entered May 20, 2005, on the ground of excusable default.

ORDERED that the order is affirmed, with costs.

A judgment was entered in this action on May 20, 2005, upon the defendant's failure to appear or answer. By order to show cause dated October 21, 2008, the defendant moved, in effect, pursuant to CPLR 5015(a)(4) to vacate the judgment on the ground that the court lacked jurisdiction to render a judgment, in effect, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, and pursuant to CPLR 5015(a)(1) to vacate the judgment on the ground of excusable default. The defendant claims, among other things, that she was not properly served with the summons and complaint in this action. The plaintiff opposed the motion. The Supreme Court conducted a hearing to determine the validity of service of process. In the order appealed from, the Supreme Court denied the defendant's motion. We affirm.

"Service of process must be made in strict compliance withstatutory 'methodsfor effecting personal service upon a natural person' pursuant to CPLR 308" ( Estate of Waterman v. Jones, 46 A.D.3d 63, 65, 843 N.Y.S.2d 462, quoting Macchia v. Russo, 67 N.Y.2d 592, 594, 505 N.Y.S.2d 591, 496 N.E.2d 680; see Dorfman v. Leidner, 76 N.Y.2d 956, 958, 563 N.Y.S.2d 723, 565 N.E.2d 472). "CPLR 308(2), inter alia, authorizes service by delivery of the summons within the state to a person of suitable age and discretion at the defendant's dwelling place, and mailing the summons to the defendant's last known residence" ( Roberts v. Anka, 45 A.D.3d 752, 753, 846 N.Y.S.2d 280). " 'The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process' " ( id., quoting Bankers Trust Co. of Cal. v. Tsoukas, 303 A.D.2d 343, 343, 756 N.Y.S.2d 92). Contrary to the defendant's contentions, the plaintiff established, by a preponderance of the evidence, that the defendant was properly served pursuant to CPLR 308(2). The Supreme Court's credibility determinations following the hearing are entitled to substantial deference, and we decline to disturb them on this appeal ( see Freud v. St. Agnes Cathedral School, 64 A.D.3d 678, 679, 881 N.Y.S.2d 908; Ortiz v. Jamwant, 305 A.D.2d 477, 478, 758 N.Y.S.2d 829; Staton v. Omwukeme, 277 A.D.2d 443, 715 N.Y.S.2d 908; McGuirk v. Mugs Pub, 250 A.D.2d 824, 825, 673 N.Y.S.2d 209).

That branch of the defendant's motion which was pursuant to CPLR 5015(a)(1) for relief from the judgment on the ground of excusable default was...