| Agudo v Zhinin |
| 2010 NY Slip Op 04720 [74 AD3d 712] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Maria Canales Agudo, Respondent, v Gloria Zhinin,Defendant, and Dana Kosits et al., Appellants. |
—[*1] Osorio & Associates, LLC, White Plains, N.Y. (Michael H. Joseph of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Dana Kosits and LisaKosits appeal from an order of the Supreme Court, Westchester County (Scheinkman, J.), datedOctober 6, 2009, which denied their motion to vacate an order of the same court (Colabella, J.),entered February 10, 2009, granting the plaintiff's unopposed motion for leave to enter ajudgment against them upon their failure to appear or answer and setting the matter down for aninquest on the issue of damages.
Ordered that the order dated October 6, 2009, is reversed, on the law, with costs, and thematter is remitted to the Supreme Court, Westchester County, for a hearing to determine thevalidity of service of process upon the defendants Dana Kosits and Lisa Kosits and thereafter fora new determination of their motion to vacate their default.
Inasmuch as there is a triable issue of fact as to whether the premises at which "nail andmail" service was made was the "dwelling place or usual place of abode" (CPLR 308 [4]), of thedefendants Dana Kosits and Lisa Kosits, the Supreme Court should not have denied their motionto vacate the order granting the plaintiff's motion for leave to enter a judgment against themwithout conducting a hearing (see Thomas v Maloney, 289 AD2d 222 [2001]). Fisher,J.P., Covello, Angiolillo, Leventhal and Roman, JJ., concur.