History
  • No items yet
midpage
First Union Mortgage Corp. v. Silverman
242 A.D.2d 258
N.Y. App. Div.
1997
Check Treatment

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.

Case Details

Case Name: First Union Mortgage Corp. v. Silverman
Court Name: Appellate Division of the Supreme Court of the State of New York
Date Published: Aug 4, 1997
Citation: 242 A.D.2d 258
Court Abbreviation: N.Y. App. Div.
AI-generated responses must be verified and are not legal advice.
Your Notebook is empty. To add cases, bookmark them from your search, or select Add Cases to extract citations from a PDF or a block of text.