| Varriano v Steering Wheel Rentals, Inc. |
| 2010 NY Slip Op 03912 [73 AD3d 756] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Natalie Varriano, Appellant, v Steering Wheel Rentals,Inc., Defendant, and Son N. Trinh, Respondent. |
—[*1]
In an action to recover damages for personal injuries, the plaintiff appeals from a judgmentof the Supreme Court, Kings County (Jackson, J.), entered October 30, 2008, which, upon anorder of the same court entered September 30, 2008, inter alia, in effect, granting the motion ofthe defendant Son N. Trinh to confirm the report of a referee (Kurtz, Ct. Atty. Ref.), dated July 1,2008, which determined that service was not effected upon that defendant, and to vacate so muchof a judgment of the same court (Belen, J.), entered January 19, 1999, as, upon the default of thatdefendant in answering the complaint or appearing in the action, and after an inquest, was infavor of that plaintiff and against that defendant in the principal sum of $150,000, inter alia, ineffect, vacated so much of the judgment entered January 19, 1999, as was in favor of the plaintiffand against that defendant, and dismissed the complaint insofar as asserted against thatdefendant.
Ordered that the judgment is affirmed, with costs.
After a hearing, a referee issued a report in which she found that service of the summonswith notice and the complaint had not been effected upon the defendant Son N. Trinh. Since thatfinding is supported by the record, the Supreme Court properly confirmed the referee's report (see Shen v Shen, 21 AD3d 1078,1079 [2005]; Frater v Lavine, 229 AD2d 564 [1996]), and properly granted that branchof Trinh's motion which was pursuant to CPLR 5015 (a) (4) to vacate so much of a judgmententered upon his default in appearing or answering as was in favor of the plaintiff and againsthim (cf. Delgado v Velecela, 56AD3d 515, 516-517 [2008]).
The plaintiff's remaining contentions have been rendered academic in light of ourdetermination. Covello, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.