Revona Realty Corp. v. Wasserman

Foster, P. J., and Halpern, J. (dissenting).

We dissent and vote to reverse the order and to remit the matter to Special Term for hearing and determination as to whether the defendant was, in fact, a resident of New York State at the time that the substituted service was made. If the defendant was not a resident, the judgment was plainly void at the time of its entry. We do not believe that the affidavit submitted on behalf of the defendant, after the entry of judgment, in opposition to the motion in supplementary proceedings in New York County, had the effect of retroactively validating the judgment or of estopping the defendant from later moving in Sullivan County to vacate the judgment for jurisdictional invalidity. (Robinson v. Robinson, 123 Misc. 80, affd. 209 App. Div. 896; Weiss v. Weiss, 227 App. Div. 757; Odiens v. Odiens, 265 App. Div. 641; Irving Trust Co. v. Seltzer, 265 App. Div. 696, 701; Mehrback v. Partridge, 9 Misc. 209.)

Coon and Gibson, JJ., concur with Bebgan, J.; Foster, P. J., and Halpern, J., dissent in memorandum.

Order affirmed, with $10 costs.