Opinion
March 8, 1999
Appeal from the Supreme Court, Kings County (Kramer, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
The allegations on behalf of the defendant Nathan Botton in response to the plaintiffs motion for a judgment on the issue of liability against him upon his failure to answer were sufficient to warrant a hearing on his contention that the location where the summons was delivered was not his actual place of business, as alleged in the process server's affidavit (see, CPLR 308; Continental Hosts v. Levine, 170 A.D.2d 430). The Supreme Court therefore erred in failing to hold a hearing on that issue. Furthermore, the Supreme Court erred in sua sponte authorizing service pursuant to CPLR 308 (5) without a showing that service pursuant to CPLR 308 (1), (2) or (4) was impracticable (see, Porter v. Porter, 227 A.D.2d 538; Axxon Corp. v. Xaba USA, 215 A.D.2d 517; Preza v. Sever's Gourmet, 212 A.D.2d 765).
O'Brien, J. P., Joy, Krausman and Luciano, JJ., concur.