Opinion
November 1, 1988
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
Although the motion to dismiss for lack of in personam jurisdiction was granted on default (apparently because plaintiff's counsel failed to appear for oral argument), without any ratio decidendi being offered, it is clear, as the court itself noted in the order appealed, that it reviewed plaintiff's papers in opposition to the motion. Although the opposing papers did not contain an affidavit of service, counsel's affirmation, based on personal knowledge, does raise an issue of fact with respect to a purported personal service on defendant. In such circumstances, it was a clear abuse of discretion to dismiss the action on the basis of counsel's nonappearance at the oral argument. Accordingly, we reverse and remand for a traverse hearing.
Concur — Kupferman, J.P., Sullivan, Asch, Milonas and Ellerin, JJ.