Opinion
2014-2660 K C
04-06-2016
FIA Card Services, N.A., Respondent, v. Rifky Hirsch, Appellant.
PRESENT: :
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered August 6, 2014. The order, after a traverse hearing, denied defendant's motion to vacate a default judgment and dismiss the complaint.
ORDERED that the order is affirmed, without costs.
In this action to recover for breach of a credit card agreement, a default judgment was entered in favor of plaintiff on June 4, 2010 in the principal sum of $10,362.67. Thereafter, defendant moved to vacate the default judgment and dismiss the complaint on the ground that the Civil Court lacked personal jurisdiction over her (see CPLR 5015 [a] [4]). The Civil Court granted the motion to the extent of ordering a traverse hearing.
At the traverse hearing, the process server testified that after he had arrived at the apartment building where defendant resided, he rang the doorbell, and a male, later identified as "Efraim," opened the door. "Efraim" refused to provide his last name to the process server. Upon being questioned, "Efraim" told the process server that he was defendant's relative, and that he would give the papers to her. When the process server asked if he could enter the premises, "Efraim" told him that defendant was not at home. The process server testified that he was on the ground floor when he spoke with "Efraim." The process server further testified that he had thereafter mailed a copy of the summons and complaint to defendant at the same address.
Defendant testified that she resides on the third floor of the building with her husband, Efraim, and her children. She further testified that the entrance to her apartment is located through a door on the ground floor of the building, and that her name appears above the doorbell. She did not recall whether the doorbell rang, and stated that she did not receive any papers from anyone on the day in question. Defendant's husband, Efraim, testified that he is usually not at home during the day. They both testified that the other two apartments in the building have separate doorbells and doors that lead to the respective apartments.
After the hearing, by order entered August 6, 2014, the Civil Court denied defendant's motion.
It is well settled that issues of credibility are appropriately resolved by the trier of fact, who is in the best position to assess a witness's demeanor (see e.g. Cautela Realty v McDonald, 239 AD2d 481 [1997]; McMullen v Arnone, 79 AD2d 496, 498 [1981]). Such findings are accorded great deference and should not be disturbed on appeal if supported by a fair interpretation of the evidence (see McCray v Petrini, 212 AD2d 676 [1995]; McMullen v Arnone, 79 AD2d at 498).
Here, the Civil Court, as the finder of fact, found the process server's testimony to be more credible than that of defendant and her witness. After a thorough hearing into the facts surrounding the service of process and a painstaking analysis of those facts, the court rejected defendant's denial of service and credited the process server's testimony, concluding that defendant's husband, Efraim Hirsch, had accepted service on his wife's behalf. The court's conclusion was based on its own firsthand assessment of the witnesses' testimony. Absent a finding that the court's determination was against the weight of the credible evidence, it is not for this court on appeal to second-guess that determination (see McCray v Petrini, 212 AD2d at 676; see also Santiago v Honcrat, 79 AD3d 847 [2010]; Freud v St. Agnes Cathedral School, 64 AD3d 678 [2009]). Here, the Civil Court's determination is amply supported by the record. When the process server rang the doorbell with defendant's name, defendant's husband came to the door leading into their apartment. Defendant's husband identified himself as "Efraim," a relative of defendant, and informed the process server that defendant was not at home. Since personal service may be made by "delivering the summons within the state to a person of suitable age and discretion at the actual . . . dwelling place or usual place of abode of the person served" (CPLR 308 [2]), service of process was properly effectuated.
Accordingly, the order is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur. Decision Date: April 06, 2016