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CPLR 5015(a)(3) and (4)

The defendants, his brother, and his father were the principal shareholders of the corporate defendant. For several years prior to 1974 the corporation owned a restaurant in Staten Island, together with the real property upon which it was located. During this time, the brother had been the president and chief operating officer of the restaurant, while his brother defendant and his father apparently had not been actively involved in the business.

Sometime in January 1974 the president of the plaintiff real estate broker, approached the brother to discuss a possible sale of the restaurant and the real property upon which it was situated, as well as a private residence immediately adjacent thereto which was owned by him, his wife, and his father. Within a few weeks, a contract of sale was prepared and executed under which the restaurant, the property upon which it was located and the adjacent private residence were to be sold to a buyer produced by the plaintiff. Thereafter, on or about April 25, 1974, the transaction was consummated with the transfer of all of the stock of the corporate defendant together with the private residence, to the buyer. As part of the financial arrangements for the transaction the buyer gave a purchase money mortgage to defendant and the other parties. Thereafter, the purchase money mortgage was foreclosed and the real properties were conveyed to the buyer and his sons, as tenants in common.

Plaintiff commenced the instant accident action against the seeking to recover the balance allegedly due under the brokerage agreement. Following service of the summons and complaint upon him, the brother retained an attorney, to appear on his behalf and purportedly to appear as well on behalf of his brother, his father, and the corporation. Following his retention, the attorney filed a notice of appearance and an answer on behalf of all the defendants and later interposed an amended answer and filed a demand for a bill of particulars on their behalf.

On March 14, 1983, the parties–the defendants now purportedly appearing by one counsel to the other attorney entered into a stipulation in open court providing for settlement of the action for the sum of $17,000. It was further provided that if payment was not made within 30 days, Skyline could enter a default judgment against the defendants for the entire amount alleged to be due, to wit, $39,000. Thereafter, on May 10, 1983, following the defendants’ failure to pay the settlement amount within the allotted time, a judgment was entered pursuant to the parties’ stipulation against the defendants in the sum of $39,000. Based upon that judgment, Skyline’s counsel thereafter issued an execution, with notice to garnishee, to three individuals who were indebted to the defendant under a mortgage and petitioned the court for entry of a judgment directing the mortgagors to pay plaintiff the sum of $39,152 in satisfaction of the outstanding judgment against the defendants.

Thereafter, by order to show cause dated October 24, 1983, defendant moved, inter alia, for an order pursuant to CPLR 5015(a)(3) and (4), vacating the judgment insofar as entered against him. In support of his application, he alleged that he had never been served with process in the action and that he had first become aware of the action and of the judgment therein in June of 1983 when execution was levied upon the mortgage payments due to him. He claimed that without his knowledge or consent his brother had apparently retained the attorney to defend the action and that Fitzpatrick had entered an appearance on his behalf without his knowledge or authorization and without his ever having been advised of the pendency of the action.

A New York Premises Liability Lawyer said that, by order dated March 13, 1984, Special Term directed that a hearing be held on the issues of whether proper service was effected upon defendant and whether the attorney had had authority to appear on his behalf. Following the hearing, Special Term concluded that personal service had never been effected upon Frank and that it, therefore, lacked personal jurisdiction over him. Accordingly, Special Term vacated the judgment as against defendant.

The issue in this case is whether an attorney’s unauthorized appearance conferred personal injury jurisdiction over the individual for whom the attorney purported to appear when that individual neither had been served with process nor had become aware of the fact that an action had been brought against him until subsequent to judgment.

We conclude that, under such circumstances, personal jurisdiction is not acquired and the judgment entered as a result of such an unauthorized appearance must be vacated.

While Special Term’s determination as to the lack of personal service was, in our view, correct, we do not agree that the question of the attorney’s authority to appear on defendant’s behalf is moot. For the reasons stated herein, we find it necessary to reach that issue and upon our review thereof we conclude that vacatur of the judgment as against defendant was appropriate. Accordingly, we affirm.

At the outset, we address the issue of whether jurisdiction was acquired over the defendant by proper service of process. In New York, a civil action is generally commenced and jurisdiction acquired by service of a summons (CPLR 304). While there are a number of methods by which a summons may be served upon a natural person, the method claimed to have been utilized at bar to effect service was personal delivery of the summons pursuant to CPLR 308(1). It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing.

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