Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered May 7, 2010.
Richmond County Sav. Bank v Stasinopoulos
Decided on January 24, 2012
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: WESTON, J.P., PESCE and RIOS, JJ
The order denied defendant's motion to vacate a default judgment.
ORDERED that the order is reversed, without costs, and the matter is remitted to the Civil Court for a new determination, following a traverse hearing, of defendant's motion to vacate the default judgment.
In this action to recover for breach of a loan agreement, defendant defaulted and a default judgment was entered on November 1, 1991 in the principal sum of $1,301.45. Defendant moved to vacate the default judgment in March 2010. The Civil Court denied the motion.
The sworn denials of service sufficiently raise issues of fact with
respect to service of process so as to require a traverse hearing (see
CPLR 5015 [a] ; Cadin Constr. v Rich Agency, 158 AD2d 442 ;
Congregaton Abath Achim v Radsminsky, 26 Misc 3d 145[A], 2010 NY Slip
Op 50448[U] [App Term, 2d, 11th
& 13th Jud Dists 2010]). Thus, the Civil Court improvidently exercised its
discretion in summarily denying defendant's motion to vacate the default judgment
without conducting a traverse hearing to resolve the threshold issue of personal service.
Accordingly, the order denying defendant's motion to vacate the default judgment is reversed
and the matter is remitted to the Civil Court for a new determination, following a traverse hearing,
of defendant's motion to vacate the default judgment. Weston, J.P., Pesce and Rios, JJ., concur.
Decision Date: January 24, 2012
© 1992-2012 VersusLaw ...