R. P. Cautela Realty, Inc. v. McDonald

May 19, 1997
Versions:239 A.D.2d 481
658 N.Y.S.2d 954
1997 N.Y. App. Div. LEXIS 5360

In an action to recover a real estate commission, the defendant appeals from an order of the Supreme Court, Dutchess County (Beisner, J.), entered May 23, 1996, which, after a hearing on the issue of personal jurisdiction, granted the plaintiff’s motion for leave to enter a judgment in its favor in the principal sum of $20,790, upon the defendant’s default in appearing in the fiction.

Ordered that the order is affirmed, with costs.

Upon a review of the record, we find that the plaintiff met its burden of establishing personal jurisdiction over the defendant by a preponderance of the evidence (see, Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135, 139). The resolution of issues of credibility by the hearing court, which had the opportunity to observe the witnesses, is entitled to great weight on appeal (see, Laurenzano v Laurenzano, 222 AD2d 560, 561). Where the evidence presents a "clear choice of polar opposites on the question of service, and the court resolved the conflict on the basis of evidence which was not incredible as a matter of law”, the court’s findings should not be disturbed "in the absence of a fair reason to do so” (McMullen v Arnone, 79 AD2d 496, 498).

The defendant’s remaining contentions are without merit. Mangano, P. J., Ritter, Sullivan, Altman and McGinity, JJ., concur.