Opinion
02-21-2017
CADLEROCK JOINT VENTURE II, L.P., Plaintiff–Appellant, v. Evelyn CARRION, et al., Defendants–Respondents.
Vlock & Associates, P.C., New York (Steven P. Giordano of counsel), for appellant. Evelyn Carrion, respondent pro se. Anthony Carrion, respondent pro se.
Vlock & Associates, P.C., New York (Steven P. Giordano of counsel), for appellant.
Evelyn Carrion, respondent pro se.
Anthony Carrion, respondent pro se.
ACOSTA, J.P., RENWICK, MOSKOWITZ, FEINMAN, GESMER, JJ.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered on or about June 8, 2012, which, following a traverse hearing, granted defendants' motion to vacate a default judgment for lack of personal jurisdiction, unanimously affirmed, without costs.
Because plaintiff did not appeal from the separate order granting a traverse hearing, we will not address its arguments directed to that order. The appellate record shows that the purpose of defendants' first appearance was to assert a jurisdictional defense based on improper service. Under the circumstances, we do not find that defendants waived their jurisdictional defense (cf. McGowan v. Hoffmeister, 15 A.D.3d 297, 382, 792 N.Y.S.2d 381 [1st Dept.2005] ).
The court's determination that defendants were not personally served turned in large part on its finding that the testimony of defendant Evelyn Carrion was more credible than that of the process server. There is no basis to disturb the court's credibility determinations, which are entitled to deference on appeal (Arrufat v. Bhikhi, 101 A.D.3d 441, 442, 954 N.Y.S.2d 538 [1st Dept.2012] ).
We have considered plaintiff's remaining contentions and find them unavailing.