| Sileo v Victor |
| 2013 NY Slip Op 01395 [104 AD3d 669] |
| March 6, 2013 |
| Appellate Division, Second Department |
| William Sileo, Jr., Appellant, v Jimmy R. Victor,Respondent. |
—[*1] Martin, Fallon & MullÉ, Huntington, N.Y. (Richard C. MullÉ ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (Molia, J.), dated August 16, 2012, whichgranted the defendant's motion pursuant to CPLR 5015 (a) to vacate an order of the samecourt dated April 18, 2012, granting the plaintiff's motion for leave to enter a judgmentagainst the defendant on the issue of liability, upon the defendant's default in appearingor answering, and setting the matter down for an inquest on the issue of damages, andpursuant to CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction.
Ordered that the order dated August 16, 2012, is reversed, on the facts and in theexercise of discretion, with costs, and the matter is remitted to the Supreme Court,Suffolk County, for a hearing, and thereafter, a new determination of the defendant'smotion.
A process server's affidavit of service established, prima facie, that the defendant wasserved with process pursuant to CPLR 308 (4) by the "affix and mail" method (see Scarano v Scarano, 63AD3d 716 [2009]). The defendant's sworn, detailed, and specific statements that,when service was made, he no longer resided at the address recited in the affidavit ofservice, were sufficient to rebut the presumption of proper service established by theprocess server's affidavit (seeEngel v Boymelgreen, 80 AD3d 653, 655 [2011]; Zion v Peters, 50 AD3d894, 895 [2008]; Thomas v Maloney, 289 AD2d 222 [2001]). However,since the defendant's evidence was insufficient to dispose of his contention that he didnot reside at the subject premises at the time when service was allegedly effected (see Chichester v Alal-AminGrocery & Halal Meat, 100 AD3d 820 [2012]), and the plaintiff failed, inopposition to the defendant's motion, to submit documentary evidence sufficient todispositively establish that, at the time of service, the address where the process wasserved was the defendant's dwelling place or usual place of abode, the parties are entitledto a hearing on the issue of whether service was properly effected pursuant to CPLR 308(4) (see Gray v Giannikios,90 AD3d 836, 837 [2011]; Goralski v Nadzan, 89 AD3d 801, 801-802 [2011];Zion v Peters, 50 AD3d at 895; Thomas v Maloney, 289 AD2d 222[2001]). Accordingly, we remit the matter to the Supreme Court, Suffolk County, for ahearing on the issue of whether service of process was effected upon the defendant, andfor a new determination thereafter of the defendant's motion (see Gray vGiannikios, 90 AD3d at 837; Engel v Boymelgreen, [*2]80 AD3d at 655; Zion v Peters, 50 AD3d at 895).Dillon, J.P., Hall, Roman and Cohen, JJ., concur.