| Spano v Kline |
| 2008 NY Slip Op 03759 [50 AD3d 1499] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Leonard C. Spano et al., Respondents, v David Kline, as Owner ofD.K. Forestry, Appellant, et al., Defendants. |
—[*1] Leonard C. Spano, Eleanor M. Spano and David M. Spano, plaintiffs-respondents prose.
Appeal from a judgment of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered January 16, 2007. The judgment awarded damages in favor of plaintiffs and againstdefendant David Kline, owner of D.K. Forestry, following an inquest on damages.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing that plaintiffs are awarded damages for 36 trees in the amount of $9,000 and asmodified the judgment is affirmed without costs.
Memorandum: David Kline, the owner of D.K. Forestry (defendant), appeals from ajudgment entered upon defendant's default with respect to liability in failing to answer thecomplaint, and awarding damages to plaintiffs in the amount of $11,915.99 following an inqueston damages, at which defendant was present. Defendant contends on appeal that Supreme Courterred in granting the judgment because the affidavit of plaintiffs' process server did not complywith CPLR 306 (b) and he was not in fact validly served. We note at the outset that defendant'scontention is properly before us despite defendant's failure to move to vacate the default on theissue of liability. The record establishes that, when defendant failed to answer the complaint,plaintiffs moved for a default judgment. Defendant appeared on the return date of the motion andcontested the default, whereupon the court ordered a traverse hearing on the issue of service ofprocess. The court determined at the hearing that defendant was properly served, and the matterthen proceeded directly to an inquest on damages. "Where, as here, a party appears and contestsan application for entry of a default judgment, CPLR 5511, prohibiting an appeal from an orderor judgment entered upon default, is inapplicable, and the judgment predicated upon the party'sdefault is therefore appealable" (Spatz v Bajramoski, 214 AD2d 436, 436 [1995]; seeJann v Cassidy, 265 AD2d 873 [1999]).
With respect to the merits of defendant's contention concerning the default, we concludethat, although defendant is correct that the process server's affidavit was not in technicalcompliance with CPLR 306 (b), "[a]n improperly executed affidavit of service is a mere [*2]irregularity and not a jurisdictional defect . . . 'Thecrucial question is whether or not [the] defendant was in fact served with process' " (Mendez v Kyung Yoo, 23 AD3d354, 355-356 [2005]). Here, plaintiffs presented evidence at the traverse hearing establishingthat defendant knowingly resisted service and that the process server left a copy of the summonsin defendant's general vicinity (see Kapsis v Green, 285 AD2d 492, 493 [2001]). We thusconclude that the court "properly determined by a fair interpretation of the evidence that serviceof process [on defendant] was valid" (R.D. Smithtown, L.L.C. v Lucille Roberts FigureSalons, 277 AD2d 439, 440 [2000]).With respect to defendant's contentions concerning the amount of damages awarded, weagree with defendant that plaintiffs are entitled to recover damages only with respect to 36 trees,rather than the 37 mistakenly found by the court to be damaged. The testimony of plaintiffLeonard Spano at the inquest on damages established that only 36 trees had been damaged, andwe therefore modify the judgment accordingly. We otherwise conclude that plaintiffs establishedtheir entitlement to the damages awarded. The testimony of plaintiff David Spano that he spent$980 to repair plaintiffs' driveway supports the award of damages in that amount. Finally, thetestimony of plaintiffs that trees were cut down on their property without their permission in anarea in which only defendant and his employees were working supports the award of damagesunder RPAPL 861 (1) (see Zablow vDiSavino, 22 AD3d 748, 749 [2005]). Present—Martoche, J.P., Smith, Peradotto,Pine and Gorski, JJ.