| Prosolov v PSRS Realty |
| 2015 NY Slip Op 04298 [128 AD3d 934] |
| May 20, 2015 |
| Appellate Division, Second Department |
[*1]
| Dmitry Prosolov, Respondent, v PSRS Realtyet al., Appellants. |
Bernard Ouziel, Great Neck, N.Y., for appellants.
Steven Zalewski & Associates, P.C., Kew Gardens, N.Y. (Dustin Bowman ofcounsel), for respondent.
In an action, inter alia, to recover damages for breach of a lease, the defendantsappeal from a judgment of the Supreme Court, Nassau County (Goodstein, J.), enteredSeptember 30, 2013, which, upon an order of the same court (Mahon, J.) dated June 26,2013, determining, after a hearing, that they were validly served with process anddenying their motion to vacate an order of the same court (Goodstein, J.) enteredFebruary 4, 2013, upon their default in appearing or answering, is in favor of the plaintiffand against them in the total sum of $21,700.
Ordered that the judgment is affirmed, with costs.
In reviewing a determination made by a hearing court, the power of this Court is asbroad as that of the hearing court, and this Court may render its own determination aswarranted by the facts, taking into account that, in a close case, the hearing court had theadvantage of seeing and hearing the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Doubletree Hotel Tarrytown vChacko, 115 AD3d 703, 704 [2014]; Bartow v Lugo, 66 AD3d 936, 937 [2009]; Mastroianni v Rallye Glen Cove,LLC, 59 AD3d 686, 687 [2009]). The documents submitted by the plaintiff,including the affidavits of service and the process server's logbook and spreadsheets, andthe credible testimony of the process server, constituted prima facie proof that theprocess server delivered copies of the summons and complaint to the individualdefendant (see Doubletree Hotel Tarrytown v Chacko, 115 AD3d at 704;Greck v Anish, 229 AD2d 375, 375-376 [1996]). The inconsistencies betweenthe description of the individual defendant in the affidavits of service and the individualdefendant's appearance in court almost 1
The defendants' remaining contention, raised for the first time on appeal, is notproperly before this Court (seeParker v Navarra, 102 AD3d 935, 937 [2013]). Skelos, J.P., Dickerson, Hall andMaltese, JJ., concur.