Monday, April 14, 2014

A hearing on proper service of process.

Practice point:  The Appellate Division found that the Supreme Court should have granted those branches of the appellant's motion which were pursuant to CPLR 5015(a)(4), to vacate the judgment of foreclosure and sale, and pursuant to CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction. The Supreme Court's finding that the process server delivered the summons and complaint to the appellant's youngest daughter, who, at the time of service, was 15 ½ years old, was not warranted by the facts There was insufficient evidence at the hearing to establish that the description in the affidavit of service matched the actual appearance of the appellant's youngest daughter. In addition, neither the affidavit of service nor the process server's testimony established that papers were mailed to the appellant's last known residence, pursuant to CPLR 308[2].

Student note:  The Appellate Division's authority to review a determination rendered after a hearing is as broad as that of the hearing court, and may render the determination it finds warranted by the facts, taking into account, in a close case, that the hearing court had the advantage of seeing the witnesses.

Case:  HSBC Bank USA, N.A. v Hamilton, NY Slip Op 02261 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: A motion for leave to renew.