First Union Mortgage Corp. v. Silverman

Aug 4, 1997
Versions:242 A.D.2d 258
661 N.Y.S.2d 538
1997 N.Y. App. Div. LEXIS 8221

In an action to foreclose upon real property, the defendant Howard Silverman appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated September 10, 1996, which denied his motion, inter alia, to vacate a judgment of foreclosure and sale entered upon his default in appearing.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of whether proper service was made upon the appellant in accordance with the requirements of CPLR 308 (4).

The Supreme Court erred in failing to hold a hearing on the issue of whether the appellant was properly served pursuant to CPLR 308 (4) (see, Allstate Ins. Co. v Cohen, 236 AD2d 344; Dime Sav. Bank v Steinman, 206 AD2d 404). The process server’s affidavits of service are not conclusive on the issue of “due diligence” in light of the appellant’s sworn statement that he operated a business out of his residence and was present on those occasions when the process server allegedly attempted to serve him. Accordingly, the matter must be remitted to the Supreme Court for a hearing.

We have considered the appellant’s remaining contentions and find them to be without merit. O’Brien, J. P., Ritter, Gold-stein and Luciano, JJ., concur.