In 1989, defendant executed a promissory note in favor of plaintiff's predecessor-in-interest, Chemical Bank. On his loan application, defendant gave a Brooklyn address as his residence and stated that he had been living there for 20 years. Defendant defaulted and, in 1994, Chemical Bank commenced an action to collect on the note. A summons and complaint was allegedly served on defendant by personal delivery to defendant's aunt, at the address listed on the note. Plaintiff contends that the summons and complaint was also mailed to that address.

In 1992 defendant was arrested on an unrelated matter, and, though plaintiff was unaware of it, he was incarcerated until 2005.

When defendant failed to respond to service of the summons and complaint in this action, Chemical Bank moved for a deficiency judgment on default, which was granted in 1994, in the amount of $47,543.64. In 1997, this unsatisfied judgment was assigned to plaintiff. It was filed with the Clerk of Kings County in 1999, and became a lien upon any real property owned by defendant in Kings County. A renewal of the judgment was entered in 2005.

In 2006, plaintiff moved for an order authorizing the Kings County Sheriff to mail all required papers in aid of execution of the 1994 judgment to defendant's last known address in Brooklyn, and to his counsel. Plaintiff also sought to amend the caption in this action to substitute its name for Chemical Bank.

The First Department denied defendant's cross-motion, in which he claimed a lack of personal jurisdiction and sought to dismiss the action and to vacate the 1994 judgment, in The Cadle Company v. Nunez, which was decided on September 6, 2007. The court found the record clear that service of a copy of the summons and complaint had been made to a person of suitable age and discretion, in conformity with statutory requirements, and that after such service plaintiff mailed the summons and complaint to defendant at his last known address, in satisfaction of the jurisdictional requirements of CPLR 308(2).

The court noted that plaintiff produced the process server as its only witness at the traverse hearing, and credited his testimony. The court further noted that defendant "produced four witnesses, all of whom were interested parties. Further, their testimony was rife with contradictions and inconsistencies. For example, defendant's aunt, the relative named on the affidavit of service testified that she could not have been the brown haired woman described in the affidavit of service because her hair color is blonde. However, upon production of her passport, she admitted that her hair is and was brown."

Defendant produced three other witnesses -- two relatives and his business partner -- but the court said that their testimony was tailored to show that defendant did not have notice of the action, and the court found their testimony incredible as a matter of law.