Opinion
436N 300410/14.
03-08-2016
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants. Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for respondent.
Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.
Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 9, 2015, which, in this action for personal injuries sustained in a motor vehicle accident, denied plaintiffs' motion for a default judgment as against defendant Ida S. David, unanimously affirmed, without costs.
The court exercised its discretion in a provident manner in denying plaintiffs' motion for a default judgment against defendant David. Plaintiffs failed to establish by a preponderance evidence that the alleged service upon defendant was effected at her dwelling place or place of abode (see Persaud v. Teaneck Nursing Ctr., 290 A.D.2d 350, 736 N.Y.S.2d 367 1st Dept.2002 ). Thus, on plaintiff's motion, the burden never shifted to defendant, who asserted a defense of lack of personal jurisdiction in her answer, which she had served upon plaintiffs prior to plaintiffs' service of the instant motion. Furthermore, there is no indication that plaintiffs were prejudiced by the delay in obtaining service of defendant's answer (see Jorge v. Conlon, 134 AD3d 480, 19 N.Y.S.3d 891 1st Dept.2015 ).
FRIEDMAN, J.P., ACOSTA, RENWICK, RICHTER, JJ., concur.