National Union Fire Insurance v. Montgomery , 665 N.Y.S.2d 665 ( 1997 )

—Order, Supreme Court, New York County (Norman Ryp, J.), entered on or about October 10, 1996, which denied plaintiffs motion for summary judgment, and granted its motion to dismiss defendant’s affirmative defenses only to the extent of directing a traverse, unanimously modified, on the law, to grant plaintiff summary judgment in the event personal jurisdiction is sustained, and otherwise affirmed, without costs.

Defendant’s affidavit that he did not open the door to his home for a man who knocked on the door and said he had “some papers” but neither identified himself nor the papers he had, and that after the man left plaintiff found the summons and complaint on his doorstep, is sufficient to rebut the process server’s affidavit that he personally delivered the summons and complaint to defendant, and raises an issues of fact as to jurisdiction (see, Cooper v Drobenko Bros. Realty, 200 AD2d 415; Coyne v Besser, 154 AD2d 503, lv denied 75 NY2d 711). However, if service is found to have been proper, plaintiff would be entitled to summary judgment, since the guarantee in issue specifically prohibits assertion of any defenses to the underlying note (see, National Union Fire Ins. Co. v Allen, 232 AD2d 80, 88-89). Concur—Wallach, J. P., Rubin, Williams, Tom and Andrias, JJ.