Martin v. Walters

In an action for specific performance of a contract to sell real property, the plaintiff appeals from a decision *645of the Supreme Court, Queens County (Hyman, J.), dated October 20, 1986, and an order of the same court, entered on the decision, dated November 5, 1986, which, inter alia, dismissed the complaint, after a hearing, for lack of proper service on the defendant.

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision; and, it is further,

Ordered that the order is affirmed, without costs or disbursements.

The proof adduced by the defendant adequately established that proper service had not been effected by the plaintiffs. A prior order of the same court, dated January 22, 1986, denying the defendant’s motion to cancel the notice of pendency was rendered without the benefit of a hearing. Under the circumstances of this case, we conclude that the defendant did not have a full and fair opportunity to litigate the issue of personal jurisdiction until the hearing ordered with respect to his motion to vacate a default judgment previously entered against him (see, Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485; Keeler v West Mountain Corp., 105 AD2d 953, 954). Weinstein, J. P., Rubin, Kooper and Sullivan, JJ., concur.