De Capua v. Morrissey , 413 N.Y.S.2d 69 ( 1979 )

Order unanimously reversed, without costs, and motion granted for the reasons and upon the conditions set forth in the following memorandum: Defendant appeals from an order denying his motion to vacate a default judgment taken against him in an action arising out of an accident which occurred at defendant’s residence resulting in injuries to the infant plaintiff. On a prior appeal in this action we reversed an earlier order of Supreme Court, Monroe County, vacating a default judgment stating that "defendant’s attempt to establish lack of personal jurisdiction falls far short of the showing necessary” and that "Defendant’s bare statement that he did not receive and was not served with a summons and complaint is insufficient to contest jurisdiction and 'does not rise to the status of excusable default since he does not contend that the method of substituted service was not proper’ ” (De Capua v Morrissey, 60 AD2d 754). In the moving papers on his renewal motion to vacate before Special Term defendant included uncontradicted proof (in affidavits of the process server and of the defendant which were not before the court on the original application) to the effect that the dwelling house to which the process server had affixed a copy of the summons and complaint and to which he had mailed the summons and complaint (see CPLR 308, subd 4) was not at the time the place where defendant resided. It thus appears that the service was invalid and in personam jurisdiction was never obtained over defendant. Defendant, however, seeks, rather than a dismissal of the action on jurisdictional grounds, a vacatur of the default and leave to interpose an answer on the merits. In his brief and on the argument defendant stated that in the event that the default were opened because of a defect in the service he would waive any defense of the Statute of Limitations that he otherwise might have. In the exercise of our discretion and in the interest of justice, defendant’s renewed motion on the additional papers is deemed to have been made as a motion to renew in this court (see Weinstein v Kiamesha Concord, 29 AD2d 878). The application should be granted upon the conditions that (1) defendant submit to the court’s jurisdiction by filing his answer within 10 days from the date of the order herein, and (2) that the answer omit any defense of the Statute of Limitations and that any such defense in this action be deemed in all respects waived. In the event of defendant’s failure to comply with these conditions the order is affirmed. (Appeal from order of Monroe Supreme Court — default judgment.) Present — Moule, J. P., Dillon, Hancock, Jr., Schnepp and Witmer, JJ.