| Sandella v Hill |
| 2018 NY Slip Op 08051 [166 AD3d 924] |
| November 21, 2018 |
| Appellate Division, Second Department |
[*1]
| Louis Sandella, Respondent, v Stephen R. Hill,Appellant. |
Warren R. Markowitz, Lake Ronkonkoma, NY, for appellant.
Anthony P. Gallo P.C., Commack, NY, for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendantappeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.),dated December 4, 2015. The order denied the defendant's motion pursuant to CPLR5015 (a) to vacate a judgment of the same court entered January 13, 2011, upon hisdefault in answering or appearing in the action.
Ordered that the order is affirmed, with costs.
In 2010, the plaintiff commenced this action, inter alia, to recover damages forbreach of contract. According to an affidavit of service, the summons and complaintwere served on the defendant by hand delivery at the First District Court in Mineola. Thedefendant neither appeared in the action nor answered the complaint. Upon granting theplaintiff's motion for leave to enter a default judgment, and after an inquest on the issueof damages, judgment was entered in favor of the plaintiff and against the defendant inthe principal sum of $409,000.
The defendant thereafter moved pursuant to CPLR 5015 (a) to vacate the judgment,asserting that he was not properly served with process. In support of the motion, thedefendant submitted an affidavit averring that, on the date of service, he was a resident ofNevada and was in New York solely for the purpose of attending a court proceedingrelated to a criminal matter. According to the defendant, as he was waiting for his case tobe called, an unknown person came into the courtroom, called out his name, and droppedsome papers on the floor. The defendant indicated that he did not pick the papers upbecause his attorney told him that he could not be served in court. The Supreme Court,without a hearing, denied the defendant's motion to vacate the default judgment.
"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" (Hall v Wong, 119 AD3d897, 897 [2014]; see Bossuk v Steinberg, 58 NY2d 916, 918 [1983]). Here,the defendant admitted that the summons and complaint were left in his general vicinityand that he was aware that this was being done. Thus, the plaintiff [*2]satisfied his burden of demonstrating that the defendantwas properly served pursuant to CPLR 308 (1) (see Hall v Wong, 119 AD3d at897).
Further, contrary to the defendant's contention, he was not immune from suchservice. "The doctrine of immunity from service protects nondomiciliaries of New Yorkfrom civil process when they voluntarily appear in New York to participate in legalproceedings of any kind" (Moreo v Regan, 140 AD2d 313, 315 [1988]; seeThermoid Co. v Fabel, 4 NY2d 494 [1958]). However, to be entitled to suchimmunity, a defendant must demonstrate that she or he "was, in fact, a nonresident, that[her or] his sole purpose in appearing in New York was to [participate in the relevantlegal] proceeding, and that there were no available means of acquiring jurisdiction over[her or] his person other than personal service in New York" (Moreo v Regan,140 AD2d at 315). Here, even assuming that the defendant's appearance in New Yorkwas voluntary (see Thermoid Co. v Fabel, 4 NY2d 494 [1958]), he was notentitled to immunity because personal jurisdiction could have been obtained over him byserving him outside of New York pursuant to CPLR 302 and 313 (see Bokara Rug Co., Inc. vKapoor, 93 AD3d 583, 584 [2012]; Olbi USA v Agapov, 294 AD2d139, 139 [2002]; Brause 59 Co. v Bridgemarket Assoc., 216 AD2d 200, 201[1995]).
The defendant's remaining contentions are without merit. Austin, J.P., Roman, Sgroiand LaSalle, JJ., concur.