Serraro v. Staropoli

• Decision Date: 24 April 2012
• Parties: David SERRARO, et al., respondents, v. Nicholas STAROPOLI, et al., appellants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03164
94 A.D.3d 1083
943 N.Y.S.2d 201

David SERRARO, et al., respondents,
v.
Nicholas STAROPOLI, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

April 24, 2012.

[943 N.Y.S.2d 202]

Daniel M. Kolko, White Plains, N.Y. (Vincent D'Andrea and William T. Barbera of counsel), for appellants.

Robert I. Gruber, New York, N.Y., for respondents.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.

[94 A.D.3d 1083] In an action to recover damages for personal injuries, the defendants appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated November 22, 2010, as granted those branches of their motion which were, in effect, to vacate a default judgment of the same court entered March 24, 2008, upon their failure to [94 A.D.3d 1084] appear or answer the complaint, in favor of the plaintiffs and against them in the principal sum of $57,140.68, and to dismiss the complaint for lack of personal jurisdiction only to the extent of directing a hearing to determine the validity of service of process upon them, (2) from an

[943 N.Y.S.2d 203]

order of the same court (Friedman, J.), dated April 15, 2011, which, after the hearing, and upon a decision dated March 15, 2011, denied those branches of the motion, and (3) from an order of the same court (Lefkowitz, J.), dated July 27, 2011, which denied their motion, in effect, for leave to reargue and resettle the order dated April 15, 2011, and to vacate the underlying decision dated March 15, 2011.

ORDERED that the appeals from the orders dated November 22, 2010, and July 27, 2011, are dismissed; and it is further,

ORDERED that the order dated April 15, 2011, is reversed, on the law, and those branches of the defendants' motion which were, in effect, to vacate a default judgment entered March 24, 2008, upon their failure to appear or answer the complaint, in favor of the plaintiffs and against them in the principal sum of $57,140.68, and to dismiss the complaint for lack of personal jurisdiction are granted; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The appeal from the order dated November 22, 2010, must be dismissed, as no appeal lies as of right from an order which directs a hearing to aid in the disposition of a motion ( see Aguilera v. Pistilli Constr. & Dev. Corp., 63 A.D.3d 765, 766, 882 N.Y.S.2d 145; Akerman v. Akerman, 53 A.D.3d 633, 862 N.Y.S.2d 383; D'Agnese v. Spinelli, 308 A.D.2d 561, 562, 764 N.Y.S.2d 878), and we decline to grant leave to appeal.

The Supreme Court erred in finding that service of process upon the defendants was valid. Pursuant to CPLR 308(4), service of process may be made “by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode” only where the alternate methods of personal service provided for in CPLR 308(1) or (2) “cannot be made with due diligence” (CPLR 308[4] ). The requirement of due...