Opinion
February 5, 1990
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether the appellant was properly served with the summons.
The sworn denial by the defendant Kenneth L. Rich that he had been personally served with process under CPLR 308 (1) sufficiently controverted the process server's affidavit so as to require a hearing on the issue of jurisdiction (see, Frankel v Schilling, 149 A.D.2d 657; Skyline Agency v Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139; Cranesville Block Co. v Carpenter, 88 A.D.2d 1015). If service was not properly made, the court would accordingly lack jurisdiction over the appellant and the default judgment would be a nullity as against him (see, Citibank v Keller, 133 A.D.2d 63, 64; Chase Manhattan Bank v Carlson, 113 A.D.2d 734, 735). However, if the court finds service was correctly made then, under the circumstances of this case, the motion to vacate the default judgment should be denied. Bracken, J.P., Lawrence, Harwood and Balletta, JJ., concur.