Opinion
No. 2011–191 N C.
2012-08-7
U.S. EQUITIES CORP., Appellant, v. Augusto MORSELLI, Respondent.
Present: NICOLAI, P.J., MOLIA and IANNACCI, JJ.
Appeal from an order of the District Court of Nassau County, First District (Michael A. Ciaffa, J.), entered July 29, 2010. The order granted defendant's motion to vacate a default judgment and dismissed the complaint.
ORDERED that the order is reversed, without costs, the complaint is reinstated, and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether 27 Frost Creek Drive, Locust Valley, New York, was defendant's usual place of abode or actual dwelling place at the time service was effectuated.
In this action to recover for, among other things, breach of a credit card agreement, a default judgment was entered on November 23, 2009 in the principal sum of $14,489.07 upon defendant's failure to appear or answer. Defendant moved to vacate the default judgment. The District Court granted the motion, finding that defendant had not been properly served, and dismissed the complaint on the ground that plaintiff lacked standing.
Upon a review of the record, we find that defendant's sworn motion papers sufficiently raised issues of fact as to whether 27 Frost Creek Drive, Locust Valley, New York, was his residence at the time service was effectuated at that location, so as to require a hearing on the issue ( seeCPLR 5015[a][4]; Cadin Contr. v. Rich Agency, 158 A.D.2d 442 [1990];Bethpage Motel, Inc. v. Greenstein, 2003 N.Y. Slip Op 51310[U] [App Term, 9th & 10th Jud Dists 2003] ). In the event it is determined that jurisdiction was properly obtained over defendant, there is no basis for vacating the default judgment against him, as his conclusory denial of liability failed to establish a meritorious defense to the action ( seeCPLR 317, 5015[a]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138 [1986] ). We note that the issue of standing was not raised by defendant. Accordingly, the order is reversed, the complaint is reinstated, and the matter is remitted to the District Court for a new determination of defendant's motion to vacate the default judgment, following a hearing to determine whether 27 Frost Creek Drive, Locust Valley, New York, was defendant's usual place of abode or actual dwelling place at the time service was effectuated (CPLR 308[4] ).