Practice point: The Appellate Division found that the Supreme Court should have granted those branches of the
appellant's motion which were pursuant to CPLR 5015(a)(4), to vacate the
judgment of foreclosure and sale, and pursuant to
CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction. The Supreme Court's finding that the process server delivered
the summons and complaint to the appellant's youngest daughter, who, at
the time of service, was 15 ½ years old, was not warranted by the facts. There was insufficient evidence at the hearing to
establish that the description in the affidavit of service matched the
actual appearance of the appellant's youngest daughter. In addition, neither the affidavit of service nor the
process server's testimony established that papers were mailed to the appellant's last known residence, pursuant to CPLR 308[2].
Student note: The Appellate Division's authority to review a determination rendered
after a hearing is as broad as that of the hearing court, and may
render the determination it finds warranted by the facts, taking into
account, in a close case, that the hearing court had the advantage of
seeing the witnesses.
Case: HSBC Bank USA, N.A. v Hamilton, NY Slip Op 02261 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: A motion for leave to renew.
