Gil-Soo Cha v. David

Gil-Soo Cha v David (2016 NY Slip Op 01608)

Gil-Soo Cha v David

2016 NY Slip Op 01608

Decided on March 8, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 8, 2016
Friedman, J.P., Acosta, Renwick, Richter, JJ.

436N 300410/14

[*1]Gil-Soo Cha, et al., Plaintiffs-Appellants,

v

Ida S. David, Defendant-Respondent, Gabrielle R. Ragone, et al., Defendants.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered January 9, 2015, which, in this action for personal injuries sustained in a motor vehicle accident, denied plaintiffs' motion for a default judgment as against defendant Ida S. David, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in denying plaintiffs' motion for a default judgment against defendant David. Plaintiffs failed to establish by a preponderance evidence that the alleged service upon defendant was effected at her dwelling place or place of abode (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350 [1st Dept 2002]). Thus, on plaintiff's motion, the burden never shifted to defendant, who asserted a defense of lack of personal jurisdiction in her answer, which she had served upon plaintiffs prior to plaintiffs' service of the instant motion. Furthermore, there is no indication that plaintiffs were prejudiced by the delay in obtaining service of defendant's answer (see Jorge v Colon, 134 AD3d 480 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 8, 2016

DEPUTY CLERK