Cottakis v. Pezas

12 Misc. 2d 215 | N.Y. Sup. Ct. | 1958

Edgar J. Nathast, J.

Motion to set aside service of summons under an order of substituted service is disposed of as follows:

Defendant, Apostólos K. Pezas, is alleged to be a domiciliary of Montreal, who, on occasional visits to New York, is granted the use of a “ guest ’ ’ apartment owned by a corporation with whom defendant does business. Defendant is further alleged to have departed for Greece, just over a week prior to the service of the summons pursuant to an order of substituted service at the New York City apartment.

An affidavit is submitted on the motion, and states that, on information and belief defendant is a domiciliary of Montreal. While the court can give very little weight to such an affidavit, the provisions of section 230 of the Civil Practice Act are not limited to those who are both residing and domiciled in the State. Residence alone is sufficient to subject him to the powers of the State sovereign. Defendant is listed as the occupant in apartment 9C, at the New York address; his name has appeared in the telephone directory listings at that address for the past four years, and is still so listed, and his name appears on the business directory at his place of employment in New York City. Under these circumstances and in the absence of other controverting evidence, defendant is held to be a permanent resident of the State of New York.

It is further urged on behalf of defendant that he was not physically present in the State at the time of service, in that he had “ departed ” for Greece one week prior thereto. This is no evidence that he intends no longer to be a resident of New York, especially when his luggage has not been removed from the basement of the apartment. The case of Rawstorne v. Maguire (265 N. Y. 204) is distinguishable in that the defendant here left the State to return to his State of domicile, and therefore must have given up his home in this State. The facts here, in the absence of other evidence, indicate nothing more than a temporary trip abroad.

Accordingly the motion is denied.