| Kasowitz, Benson, Torres & Friedman, LLP v Cao |
| 2013 NY Slip Op 02492 [105 AD3d 521] |
| April 11, 2013 |
| Appellate Division, First Department |
| Kasowitz, Benson, Torres & Friedman, LLP,Respondent, v Shelly Cao, Appellant, et al.,Defendant. |
—[*1] Kasowitz, Benson, Torres & Friedman LLP, New York (Joshua A. Siegel ofcounsel), for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered June 27, 2011,which denied the motion of defendant Shelly Cao to vacate a default judgment againsther, unanimously reversed, on the law, without costs, and the motion granted to theextent of remanding the matter for a traverse hearing to determine whether the court hadjurisdiction to render the default judgment.
Cao's sworn, nonconclusory claim that the building at which she was allegedlyserved was not her actual dwelling place or usual place of abode raised an issue of fact asto whether plaintiff validly served her with process pursuant to CPLR 308 (4) so as tovest the court with jurisdiction to render the default judgment. Accordingly, a traversehearing must be held to determine whether Cao is entitled to relief from the judgmentpursuant to CPLR 5015 (a) (4) (see Cordova v Thessalonica Ct. Assoc., 35 AD3d 256 [1stDept 2006]; see also FinkelsteinNewman Ferrara LLP v Manning, 67 AD3d 538, 538-539 [1st Dept 2009]).
If, after the traverse hearing, the court finds that the summons was not affixed toCao's dwelling place or usual place of abode, then it must grant that branch of Cao'smotion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4) anddismiss the action. If, however, the court determines that service was proper under CPLR308 (4), then it must make a factual determination as to whether Cao personally receivednotice of the summons in time to defend pursuant to CPLR 317. If the court finds thatCao did not personally receive notice of the summons in time to defend, then she wouldbe entitled to relief pursuant to CPLR 317 because she moved to vacate the defaultjudgment within a year after she obtained knowledge of entry of [*2]the judgment and because she established a potentialmeritorious defense—namely, that she is not personally liable for the defendantcorporation's unpaid legal fees (see e.g. T.D. Bank, N.A. v Halcyon Jets, Inc., 99 AD3d431 [1st Dept 2012]). Concur—Andrias, J.P., Moskowitz, Freedman,Manzanet-Daniels and Feinman, JJ.