| Zernitsky v Shurka |
| 2012 NY Slip Op 02678 [94 AD3d 875] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Esther Zernitsky et al., Respondents, v Nancy Shurka et al.,Appellants. |
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In an action to permanently enjoin the defendants from selling or otherwise alienating certainreal property, the defendants appeal, as limited by their brief, from so much of an order of theSupreme Court, Nassau County (Marber, J.), dated January 3, 2011, as denied that branch of theirmotion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst the defendant Nancy Shurka.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, and the matter is remitted to the Supreme Court, Nassau County, for ahearing on the issue of whether proper service of process was made upon the defendant NancyShurka and, thereafter, for a new determination of that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against thedefendant Nancy Shurka.
Under the particular circumstances of this case, including the fact that the plaintiffs had anopportunity to respond to a reply affidavit submitted by the defendant Nancy Shurka, and tosubmit papers in surreply, Nancy Shurka's reply affidavit should have been considered (see Turturro v City of New York, 77AD3d 732, 734-735 [2010]; Matterof Whittaker v New York City Bd. of Educ., 71 AD3d 776, 778 [2010]; Valure v Century 21 Grand, 35 AD3d591, 592 [2006]; Hoffman vKessler, 28 AD3d 718, 718-719 [2006]; Guarneri v St. John, 18 AD3d 813, 814 [2005]). Considering thataffidavit, for the same reason that the Supreme Court directed a hearing as to whether properservice of process was made upon the defendant Melanie Shurka, who allegedly was served atthe same time and in the same manner as Nancy Shurka, the defendants were entitled to a hearingon the issue of whether proper service of process was made upon Nancy Shurka. Accordingly,the matter must be remitted to the Supreme Court, Nassau County, for a hearing on the issue ofwhether proper service of process was made upon the defendant Nancy Shurka and, thereafter,for a new determination of that branch of the defendants' motion which was pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against the defendant Nancy Shurka.
In light of our determination, we need not reach the defendants' remaining [*2]contentions. Skelos, J.P., Eng, Belen and Cohen, JJ., concur.