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U.S. Equities Corp v. Augusto Morselli

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS


August 7, 2012

U.S. EQUITIES CORP.,
APPELLANT,
v.
AUGUSTO MORSELLI, RESPONDENT.

Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered July 29, 2010.

U.S. Equities Corp. v Morselli

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 7, 2012

PRESENT: NICOLAI, P.J., MOLIA and IANNACCI, JJ

The order granted defendant's motion to vacate a default judgment and dismissed the complaint.

ORDERED that the order is reversed, without costs, the complaint is reinstated, and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether 27 Frost Creek Drive, Locust Valley, New York, was defendant's usual place of abode or actual dwelling place at the time service was effectuated.

In this action to recover for, among other things, breach of a credit card agreement, a default judgment was entered on November 23, 2009 in the principal sum of $14,489.07 upon defendant's failure to appear or answer. Defendant moved to vacate the default judgment. The District Court granted the motion, finding that defendant had not been properly served, and dismissed the complaint on the ground that plaintiff lacked standing.

Upon a review of the record, we find that defendant's sworn motion papers sufficiently raised issues of fact as to whether 27 Frost Creek Drive, Locust Valley, New York, was his residence at the time service was effectuated at that location, so as to require a hearing on the issue (see CPLR 5015 [a] [4]; Cadin Contr. v Rich Agency, 158 AD2d 442 [1990]; Bethpage Motel, Inc. v Greenstein, 2003 NY Slip Op 51310[U] [App Term, 9th & 10th Jud Dists 2003]). In the event it is determined that jurisdiction was properly obtained over defendant, there is no basis for vacating the default judgment against him, as his conclusory denial of liability failed to establish a meritorious defense to the action (see CPLR 317, 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). We note that the issue of standing was not raised by defendant. Accordingly, the order is reversed, the complaint is reinstated, and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether 27 Frost Creek Drive, Locust Valley, New York, was defendant's usual place of abode or actual dwelling place at the time service was effectuated (CPLR 308 [4]).

Nicolai, P.J., Molia and Iannacci, JJ., concur. Decision Date: August 07, 2012

20120807

© 1992-2012 VersusLaw Inc.



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