Summary
holding that a hearing was necessary to determine whether service was effectuated on defendant after plaintiff alleged, and defendant denied, that service was made upon plaintiff's residence
Summary of this case from Rosen v. Calico Jacks, LLCOpinion
April 24, 1989
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether personal jurisdiction over the defendant was obtained in the action.
The record reveals that the defendant, in support of her motion to vacate a default judgment entered against her in this action, denied having ever received a copy of the summons and complaint. In response, the plaintiff claimed that proper service had been made on October 20, 1987, pursuant to CPLR 308 (2) at the residence of the defendant as reflected in a record of the Department of Motor Vehicles dated September 17, 1987. Without resolving the jurisdictional issue, the Supreme Court, Suffolk County, granted the defendant's motion to vacate the default on the condition that the defendant waive the defense of the Statute of Limitations. We now reverse.
The defendant correctly contends that if service was not properly effected pursuant to CPLR 308 (2), then the court has no jurisdiction over her; hence, all proceedings, including the default judgment entered against her, would be nullities (see, McMullen v. Arnone, 79 A.D.2d 496; see also, Chase Manhattan Bank v. Carlson, 113 A.D.2d 734). Moreover, where a lack of personal jurisdiction is established, the vacatur of a default judgment must be unconditional (see, Citibank v. Keller, 133 A.D.2d 63; Chase Manhattan Bank v. Carlson, supra). Accordingly, we find that the court erred in vacating the default as excusable pursuant to CPLR 5015 (a) (1) without initially resolving the jurisdictional issue under CPLR 5015 (a) (4) (see, Citibank v Keller, supra; Mayers v. Cadman Towers, 89 A.D.2d 844).
In view of the conflicting affidavits submitted on the defendant's motion, we conclude that a hearing is necessary to determine whether service was properly effectuated (see, e.g., Poet v. Kolenda, 142 A.D.2d 633). We note in this regard that Vehicle and Traffic Law § 505 (5) requires that every motor vehicle licensee notify the Commissioner of Motor Vehicles of any change of residence within 10 days of the occurrence of the change. A party who fails to comply with this provision will be estopped from challenging the propriety of service which is made to the former address (see, Hill v. Jones, 113 A.D.2d 874; Kramer v. Ryder Truck Rental, 112 A.D.2d 194; see generally, Lavery v Lopez, 131 A.D.2d 820; Poet v. Kolenda, supra). Mangano, J.P., Lawrence, Kooper and Sullivan, JJ., concur.