| Hall v Wong |
| 2014 NY Slip Op 05511 [119 AD3d 897] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Thomas Hall et al., Respondents, v ColleenWong, Appellant. |
Jeffrey Seigel, Hempstead, N.Y. (Jane C. Reinhardt of counsel), for appellant.
Kilgannon & Kilgannon, LLP, Mineola, N.Y. (Timothy Kilgannon of counsel),for respondents.
In an action, inter alia, to set aside a transfer of real property as a fraudulentconveyance, the defendant appeals, as limited by her brief, from so much of an order ofthe Supreme Court, Nassau County (Diamond, J.), entered May 8, 2013, as, after ahearing to determine the validity of service of process, in effect, denied those branches ofher motion which were pursuant to CPLR 5015 (a) (1) and (4), in effect, to vacate anorder of the same court entered December 3, 2012, setting aside a certain conveyance ofreal property as fraudulent and declaring the subject deed null and void, upon her failureto appear or answer the complaint, and pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint for lack of personal jurisdiction.
Ordered that the order entered May 8, 2013, is affirmed insofar as appealed from,without costs or disbursements.
The Supreme Court held a hearing on April 24, 2013, to determine whether thedefendant was properly served with process. The Supreme Court determined that servicewas effected by personal delivery upon the defendant pursuant to CPLR 308 (1).
If a defendant resists service of process, service may be effected pursuant to CPLR308 (1) by leaving a copy of the summons in the defendant's general vicinity, providedthat the defendant is made aware that this is being done (see Bossuk v Steinberg,58 NY2d 916, 918 [1983]; McDonald v Ames Supply Co., 22 NY2d 111, 115[1968]; Kapsis v Green, 285 AD2d 492, 493 [2001]; Spector v Berman,119 AD2d 565, 566 [1986]). Here, the plaintiffs' process server testified that after thedefendant came to the front door and he explained that he wanted to give her legalpapers, the defendant, speaking through the closed door, refused to open the door andtold him to come back another time. The process server then placed the summons andcomplaint between the storm door and the interior brown door, and told the defendantwhat he was doing. The plaintiffs satisfied their burden of demonstrating that thedefendant was properly served. The hearing court's determination is amply supported bythe record, and we decline to disturb its finding that the process server was more crediblethan the defendant (see King vGil, 69 AD3d 678 [2010]; Ahrens v Chisena, 40 AD3d 787, 788 [2007]; Lattingtown Harbor Prop. OwnersAssn., Inc. v Agostino, 34 AD3d 536, 538 [2006]).
As the Supreme Court determined that it had acquired personal jurisdiction over the[*2]defendant by proper service pursuant to CPLR 308(1), and there was no other excuse proffered for the defendant's failure to appear oranswer the complaint, the Supreme Court properly, in effect, denied those branches ofthe defendant's motion which were pursuant to CPLR 5015 (a) (1) and (4) (see Deutsche Bank Natl. Trust Co.v Matos, 77 AD3d 606, 607 [2010]; Tadco Constr. Corp. v Allstate Ins. Co., 73 AD3d 1022,1023 [2010]; Pezolano vIncorporated City of Glen Cove, 71 AD3d 970, 971 [2010]). Dillon, J.P.,Leventhal, Chambers and LaSalle, JJ., concur.