“Since the court had the opportunity to view the demeanor of the witnesses at the hearing, it was in the best position to gauge their credibility” (Lieberman v. Lieberman, 21 A.D.3d 1004, 1005, 801 N.Y.S.2d 382 ). There is no basis in the record to overturn the court's credibility determination (see Chusid v. Silvera, 110 A.D.3d 659, 971 N.Y.S.2d 878 ; Gass v. Gass, 42 A.D.3d 393, 840 N.Y.S.2d 58 ; Ahrens v. Chisena, 40 A.D.3d 787, 788, 836 N.Y.S.2d 278 ; Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86 ). As the party seeking to set aside the stipulation, the plaintiff had the burden of showing that the stipulation was the result of fraud (see Sweeney v. Sweeney, 71 A.D.3d 989, 992, 898 N.Y.S.2d 560 ; Rubin v. Rubin, 33 A.D.3d 983, 985, 823 N.Y.S.2d 218 ). “A cause of action alleging fraud requires a plaintiff to establish a misrepresentation or omission of material fact which the defendant knew was false, that the misrepresentation was made to induce the plaintiff's reliance, the plaintiff's justifiable reliance on the misrepresentation or material omission, and a resulting injury” (Hense v. Baxter, 79 A.D.3d 814, 816, 914 N.Y.S.2d 200 ; see Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370 ; Jablonski v. Rapalje, 14 A.D.3d 484, 487, 788 N.Y.S.2d 158 ).In light of the attachments provided with the stipulation, the plaintiff failed to establish the elem
The plaintiffs satisfied their burden of demonstrating that the defendant was properly served. The hearing court's determination is amply supported by the record, and we decline to disturb its finding that the process server was more credible than the defendant ( see King v. Gil, 69 A.D.3d 678, 891 N.Y.S.2d 655;Ahrens v. Chisena, 40 A.D.3d 787, 788, 836 N.Y.S.2d 278;Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86). As the Supreme Court determined that it had acquired personal jurisdiction over the defendant by proper service pursuant to CPLR 308(1), and there was no other excuse proffered for the defendant's failure to appear or answer the complaint, the Supreme Court properly, in effect, denied those branches of the defendant's motion which were pursuant to CPLR 5015(a)(1) and (4) ( see Deutsche Bank Natl. Trust Co. v. Matos, 77 A.D.3d 606, 607, 908 N.Y.S.2d 732;Tadco Constr. Corp. v. Allstate Ins. Co., 73 A.D.3d 1022, 1023, 900 N.Y.S.2d 687;Pezolano v. Incorporated City of Glen Cove, 71 A.D.3d 970, 971, 896 N.Y.S.2d 685).
who refreshed his recollection with reliable contemporaneous records, unequivocally testified that he delivered the summons and complaint to the defendant. The inconsistencies between the description of the defendant and the defendant's appearance in court almost three years later, and the location as stated in the affidavit of service and the defendant's unsubstantiated allegations regarding the description of the house where he was served with process, were not significant ( see Rowlan v. Brooklyn Jewish Hosp., 100 A.D.2d 844, 845, 474 N.Y.S.2d 84;cf. Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479). The record in this case supports the hearing court's determination that the testimony of the process server was more credible than that of the defendant, as well as the hearing court's conclusion that the defendant was properly served with process ( see Shaw Funding, L.P. v. Samuel, 101 A.D.3d 1100, 955 N.Y.S.2d 896;King v. Gil, 69 A.D.3d 678, 891 N.Y.S.2d 655;Ahrens v. Chisena, 40 A.D.3d 787, 788, 836 N.Y.S.2d 278;Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86). DILLON, J.P., LEVENTHAL, CHAMBERS and LASALLE, JJ., concur.
ORDERED that the order is affirmed insofar as appealed from, with costs. The Supreme Court properly denied that branch of the defendant's motion which was to change venue of the action from Nassau County to New York County. The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by the evidence in the record ( see generally Shaw Funding, L.P. v. Samuel, 101 A.D.3d 1100, 955 N.Y.S.2d 896;Gass v. Gass, 42 A.D.3d 393, 840 N.Y.S.2d 58;Ahrens v. Chisena, 40 A.D.3d 787, 788, 836 N.Y.S.2d 278;Lattingtown Harbor Prop. Owners Assn., Inc. v. Agostino, 34 A.D.3d 536, 538, 825 N.Y.S.2d 86). The record in this case supports the court's conclusion that the plaintiff maintained a residence in Nassau County in addition to the parties' marital residence in New York County during the parties' short marriage ( see CPLR 503[a]; Morreale v. 105 Page Homeowners Assn., Inc., 64 A.D.3d 689, 690, 884 N.Y.S.2d 93;Bennett v. Bennett, 49 A.D.3d 949, 949–950, 853 N.Y.S.2d 398;Bradley v. Plaisted, 277 A.D. 620, 621–622, 102 N.Y.S.2d 295;Jones–Ledbetter v. Biltmore Auto Sales, 229 A.D.2d 518, 519, 645 N.Y.S.2d 542;Mandelbaum v. Mandelbaum, 151 A.D.2d 727, 728, 542 N.Y.S.2d 791). The defendant's remaining contentions, raised for the first time on appeal, are not properly before this Court ( see Provident Bank v. Giannasca, 55 A.D.3d 812, 866 N.Y.S.2d 289).
*897ORDERED that the order is affirmed, with costs. The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by evidence in the record ( see generally Gass v. Gass, 42 A.D.3d 393, 840 N.Y.S.2d 58;Ahrens v. Chisena, 40 A.D.3d 787, 836 N.Y.S.2d 278;Lattingtown Harbor Prop. Owners Ass'n, Inc. v. Agostino, 34 A.D.3d 536, 825 N.Y.S.2d 86). The hearing record in this case supports the court's conclusion that the plaintiff did not effectuate service of the motion for a deficiency judgment upon the respondents ( seeRPAPL 1371[2]; First Nationwide Bank v. Pegasus Agency, 253 A.D.2d 536, 676 N.Y.S.2d 512), and we discern no basis to disturb that determination. The plaintiff's remaining contentions are without merit.
In reviewing the hearing court's determination, this Court possesses authority "which is as broad as that of the hearing court, and may render the judgment it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499)" ( American Home Mtge. v Villaflor, 80 AD3d 637). Here, the hearing court's determination that the defendant was properly served was supported by the credible evidence adduced at the hearing ( see King v Gil, 69 AD3d 678; Federal Fin. Co. v Public Adm'r, Kings County, 47 AD3d 881, 882; Ahrens v Chisena, 40 AD3d 787, 788), and we discern no basis for disturbing that determination. We further note that the hearing court properly determined that the process server's attempts to personally serve the defendant at his residence satisfied the due diligence requirement of CPLR 308 (4) ( see State of New York v Mappa, 78 AD3d 926; JPMorgan Chase Bank, N.A. v Szajna, 72 AD3d 902, 903; County of Nassau v Gallagher, 43 AD3d 972, 973-974; Akler v Chisena, 40 AD3d 559; Lemberger v Khan, 18 AD3d 447).
This Court possesses the authority to review a determination rendered after a hearing which is as broad as that of the hearing court, and may render the judgment it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses ( see Northern Westchester Professional Park Assoc, v Town of Bedford, 60 NY2d 492, 499). Here, the hearing court's determination that the defendant Melvin Villaflor was properly served pursuant to CPLR 308 (1) was supported by the credible testimony of the process server adduced at the hearing ( see King v Gil. 69 AD3d 678; Federal Fin. Co. v Public Adm'r, Kings County, 47 AD3d 881, 882; Ahrens v Chisena, 40 AD3d 787, 788), and we discern no basis for disturbing that determination.
Contrary to the defendants' contention, the Supreme Court's determination that the testimony of the process server was more credible than that of the defense witnesses is entitled to great deference on appeal, and its conclusion that service was properly effected upon the defendants is supported by the record ( see Aguilera v Pistilli Constr. Dev. Corp., 63 AD3d 765, 767; Mastroianni v Rallye Glen Cove, LLC, 59 AD3d 686, 687; Gass v Gass, 42 AD3d 393; Ahrens v Chisena, 40 AD3d 787, 788; Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538). Accordingly, we discern no basis in the record to disturb the Supreme Court's resolution of the issues.
The resolution of credibility issues by the hearing court is entitled to deference on appeal, and will be upheld if supported by evidence in the record ( see generally Gass v Gass, 42 AD3d 393; Ahrens v Chisena, 40 AD3d 787; Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536). The hearing record in this case supports the court's conclusion that the service of the motion for a deficiency judgment upon the appellants substantially complied with the requirements of RPAPL 1371 (2) ( see CPLR 2103 [b] [3]; Marine Midland Bank v Rashid, 259 AD2d 739; DJS Realty v Hirsch, 251 AD2d 618; MBL Life Assur. Corp. v 555 Realty Co., 251 AD2d 557; Sarasota, Inc. v Homestead Acres at Greenport, 249 AD2d 290), and we discern no basis for disturbing that determination.
Generally, "[a] lawyer shall not act, or accept employment that contemplates the lawyer's acting, as an advocate on issues of fact before any tribunal if the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client" (Code of Professional Responsibility DR 5-102 [ 22 NYCRR 1200.21]). This court takes into consideration, though, that (1) it is well-settled that a party's entitlement to be represented by counsel of its choice is a "valued right" and should not be impinged upon unless removal is clearly warranted (see S S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999; Goldstein v Held, 52 AD3d 471); and (2) the advocate-witness disqualification rule provides guidance, not binding authority, for courts faced with this issue (see S S Hotel Ventures Ltd. Partnership, 69 NY2d at 440; Ahrens v Chisena, 40 AD3d 787). In the case at bar, inasmuch as it is undisputed that Arroll is President and one of only three shareholders in plaintiff corporation, and Arroll's interests seem to be identical to those of plaintiff, "disqualification would have little or no effect upon the nature or extent of [his] participation in the action" (Stuart v WMHT Educ. Telecom., 195 AD2d 918 [3d Dept 1993]; see also Omansky v Bermont Holdings Ltd., 15 Misc 3d 11 [App Term, 1st Dept 2007] [attorney was not disqualified when he acted as counsel for limited liability corporate defendant for whom he was one of two shareholders]; Old Saratoga Sq. Partnership v Compton, 19 AD3d 823 [3d Dept 2005] [advocate-witness rule generally does not apply where attorney is litigant]).