| Lopez v DePietro |
| 2011 NY Slip Op 01623 [82 AD3d 715] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Candida Lopez, Respondent, v John DePietro,Appellant. |
—[*1] Klapper & Klapper, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Richmond County (D'Oca, Ref.), dated July 23, 2009, which, after a hearingto determine the validity of service of process, determined that personal jurisdiction was properlyobtained over the defendant and denied his motion to vacate an amended judgment of the samecourt (Vitaliano, J.), dated October 30, 2008, entered upon his default in appearing or answeringthe complaint.
Ordered that the order is affirmed, with costs.
An application for an adjournment is addressed to the sound discretion of the hearing court,which must engage in a balanced consideration of all of the relevant factors (see Matter ofAnthony M., 63 NY2d 270, 283 [1984]; Matter of Ciccone v Ciccone, 73 AD3d 1052, 1052-1053 [2010];Diamond v Diamante, 57 AD3d826, 827 [2008]; Matter of Vendittov Davis, 39 AD3d 555 [2007]). Contrary to the defendant's contention, under all of theattendant circumstances, the Referee did not improvidently exercise his discretion in denying thedefendant's request for an adjournment to produce additional testimony.
In reviewing the hearing court's determination, this Court possesses authority "which is asbroad as that of the hearing court, and may render the judgment it finds warranted by the facts,taking into account that in a close case, the hearing court had the advantage of seeing thewitnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60NY2d 492, 499 [1983])" (AmericanHome Mtge. v Villaflor, 80 AD3d 637 [2011]). Here, the hearing court's determinationthat the defendant was properly served was supported by the credible evidence adduced at thehearing (see King v Gil, 69 AD3d678 [2010]; Federal Fin. Co. vPublic Adm'r, Kings County, 47 AD3d 881, 882 [2008]; Ahrens v Chisena, 40 AD3d 787,788 [2007]), and we discern no basis for disturbing that determination. We further note that thehearing court properly determined that the process server's attempts to personally serve thedefendant at his residence satisfied the due diligence requirement of CPLR 308 (4) (see State of New York v Mappa, 78AD3d 926 [2010]; JPMorgan ChaseBank, N.A. v Szajna, 72 AD3d 902, 903 [2010]; County of Nassau v Gallagher, 43 AD3d 972, 973-974 [2007]; Akler v Chisena, 40 AD3d 559[2007]; Lemberger v Khan, 18AD3d 447 [2005]). Prudenti, P.J., Eng, Belen and Sgroi, JJ., concur.