Potenza Contracting Corp. v. Pizzond

Appeal from an order of the Supreme Court, Westchester County, entered November 2, 1971, which denied defendant’s motion pursuant to CPLR 5015 to set aside a default judgment for lack of jurisdiction. Order reversed, with $10 costs and disbursements, and matter is remanded to Special Term for a hearing on the issues raised by the motion papers. If on such hearing, it be found that service was proper, the court should then consider whether defendant’s default was deliberate, and whether his application to open his default showed a meritorious defense. In our opinion, the Special Term was in error when it stated in its memorandum that defendant did not deny receiving the process in the mail. Under the circumstances, determination of the conflicting allegations contained in the respective affidavits of the parties must be determined at a hearing (cf. Kirkeby-Natus Corp. v. Gevinson, 33 A D 2d 883; Levine v. Levy, 29 A D 2d 827, CPLR 2218). Latham, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.