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State Farm Fire and Casualty Company As Subrogee of Sun Y. Liu, Appellant v. Apple Pool & Contr. Corp.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts


July 12, 2012

STATE FARM FIRE AND CASUALTY COMPANY AS SUBROGEE OF SUN Y. LIU, APPELLANT, --
v.
APPLE POOL & CONTR. CORP., DEFENDANT, -AND- LISA M. BASS, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated April 6, 2011.

State Farm Fire & Cas. Co. v Apple Pool & Contr. Corp.

Decided on July 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and ALIOTTA, JJ

The order granted defendant Lisa M. Bass's motion to vacate a default judgment insofar as entered against her and to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, without costs.

In this subrogation action to recover sums plaintiff paid to its subrogor after a motor vehicle accident, defendant Lisa M. Bass moved to vacate a default judgment insofar as entered against her and to dismiss the complaint insofar as asserted against her on the ground that plaintiff had failed to obtain personal jurisdiction over her. An affidavit of service annexed to the pleadings indicated that Bass had been served by "nail and mail" service, pursuant to CPLR 308 (4), by affixation to the door of the first floor of the building where she resided. Bass claimed that the building was a two-family house and that she resided on the second floor. Plaintiff asserted that Bass had been served at the address on record with the Department of Motor Vehicles, which was also the address on the police accident report, neither of which contained any reference to the second floor, and that she was therefore estopped from challenging the propriety of service. The Civil Court granted Bass's motion to vacate the default judgment insofar as entered against her to the extent of ordering a traverse hearing. After plaintiff failed to produce the process server at the traverse hearing, the Civil Court vacated the default judgment insofar as entered against Bass and dismissed the complaint insofar as asserted against her.

Bass admitted that she resided at the address in question at the time that service was purportedly made, but she challenged the propriety of service by affixation to the first-floor door rather than the second-floor door. Contrary to plaintiff's contention, there was no basis to estop Bass from raising her claim of improper service, since plaintiff failed to demonstrate that Bass had engaged in conduct which was calculated to prevent plaintiff from ascertaining her actual address (see Feinstein v Bergner, 48 NY2d 234 [1979]; Goot v Pack, 198 AD2d 475 [1993]; Cuomo v Cuomo, 144 AD2d 331 [1988]).

At the traverse hearing, plaintiff had the burden of proving, by a fair preponderance of the evidence, that service on Bass had been properly effectuated (see Frankel v Schilling, 149 AD2d 657 [1989]). As plaintiff failed to meet its burden of proving the propriety of service under CPLR 308 (4), Bass established a lack of jurisdiction over her person (see Prudence v Wright, 94 AD3d 1073 [2012]; Krisilas v Mount Sinai Hosp., 63 AD3d 887 [2009]). Consequently, Bass's motion to vacate the default judgment insofar as entered against her and to dismiss the complaint insofar as asserted against her was properly granted (see Taylor v Jones, 172 AD2d 745 [1991]; Anello v Barry, 149 AD2d 640 [1989]). Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: July 12, 2012

20120712

© 1992-2012 VersusLaw Inc.



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