| Matter of MBNA Am. Bank, N.A. v Novins |
| 2014 NY Slip Op 08647 [123 AD3d 832] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of MBNA America Bank, N.A.,Respondent, v Gary R. Novins, Appellant. |
The Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Gary R.Novins appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), datedJanuary 9, 2014, which denied his motion pursuant to CPLR 5015 (a) (4) to vacate ajudgment of the same court entered April 13, 2006, granting the petition upon his failureto appear or answer.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing todetermine whether personal jurisdiction over Gary R. Novins was obtained in theproceeding, and for a new determination of the motion thereafter.
The appellant moved pursuant to CPLR 5015 (a) (4) to vacate a judgment enteredupon his failure to appear or answer, claiming that service of process upon him pursuantto CPLR 308 (2) was defective because a copy of the notice of petition and petition wasnot delivered to his dwelling place when it was left with a security guard at a securitybooth in the townhouse complex where he lived. In view of the conflicting affidavitssubmitted with respect to this issue, the Supreme Court should have conducted a hearingto determine whether the security guard was a person of suitable age and discretionwithin the contemplation of CPLR 308 (2), and if the outer bounds of the appellant'sdwelling place extended to the security booth (see Braun v St. Vincent's Hosp. &Med. Ctr., 57 NY2d 909, 910 [1982]; F.I. duPont, Glore Forgan & Co. vChen, 41 NY2d 794, 797 [1977]; DeStaso v Bottiglieri, 52 AD3d 453, 454 [2008]).Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing onthe issue of whether the appellant was properly served with process (see DeStaso vBottiglieri, 52 AD3d at 454; Campbell v Johnson, 264 AD2d 461 [1999];Akhtar v Cavalieri, 255 AD2d 275 [1998]), and a new determination of themotion thereafter. Dillon, J.P., Dickerson, Roman and Sgroi, JJ., concur.