| Samet v Binson |
| 2009 NY Slip Op 08804 [67 AD3d 988] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Michael Samet, as Executor of Andrew Samet, Deceased,Respondent-Appellant, v Isaac I. Binson,Appellant-Respondent. |
—[*1] Foreht Last Landau & Katz, LLP, New York, N.Y. (Richard S. Last of counsel), forrespondent-appellant.
In an action to recover money owed, the defendant appeals, as limited by his brief, from somuch of an order of the Supreme Court, Kings County (Bunyan, J.), dated September 10, 2007,as granted the plaintiff leave to re-serve the summons and complaint, and the plaintiffcross-appeals, as limited by his brief, from so much of the same order as, after a hearing, deniedhis motion to reject a referee's report of the same court (Archer, Ct. Atty. Ref.), dated March 27,2007, determining that service of process was not properly effected upon the defendant, andgranted the defendant's cross motion to confirm the referee's report, vacate a judgment of thesame court dated November 13, 1998, entered upon his default in answering the complaint, anddismiss the complaint.
Ordered that the order is affirmed, with costs to the defendant.
Issues of credibility are properly determined by the hearing court, whose determination willnot be disturbed on appeal if it is supported by a fair interpretation of the evidence (seeShoulson v Shoulson, 213 AD2d 466, 467 [1995]; DiSalvo v Ordway, 208 AD2d798 [1994]). Here, since the evidence presents a " 'clear choice of polar opposites on the questionof service, and the court resolved the conflict on the basis of evidence which was not incredibleas a matter of law,' " there is no basis for this Court to disturb the hearing court's determinationthat service was not properly effected (Cautela Realty v McDonald, 239 AD2d 481, 482[1997], quoting McMullen v Arnone, 79 AD2d 496, 498 [1981]). Accordingly, theSupreme Court properly granted the defendant's cross motion to confirm the referee's report,vacate the judgment dated November 13, 1998, and dismiss the complaint for lack of personaljurisdiction.
However, contrary to the defendant's contention, under the circumstances of this case, theSupreme Court providently exercised its discretion in granting the plaintiff leave to re-serve thesummons and complaint in the interest of justice (see CPLR 306-b; Rosenzweig v 600 N. St., LLC, 35AD3d 705 [2006]; Robles vMirzakhmedov, 34 AD3d 554 [2006]; de Vries v Metropolitan Tr. Auth., 11 AD3d 312 [2004]).
The parties' remaining contentions are without merit. Mastro, J.P., Balkin, Dickerson andLott, JJ., concur.