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Coolidge-Island Equities Ltd. Partnership v. Nicholas

226 A.D.2d 577 Court N.Y. App. Div. Decision date 1996-04-22 English

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p. 577
Coolidge-Island Equities Limited Partnership, Respondent, v Katherine Nicholas, Appellant, et al., Defendant.
[641 NYS2d 560]

In an action to foreclose a mortgage, the defendant Katherine Nicholas appeals from (1) a judgment of the

p. 578
Supreme Court, Suffolk County (Cohalan, J.), dated March 8, 1995, which is in favor of the plaintiff and against her on her default in answering, inter alia directing the sale of the subject premises at public auction, and (2) an order of the same court also dated March 8, 1995, which, inter alia, denied her motion to vacate her default in appearing and answering the complaint.

Ordered that the matter is remitted to the Supreme Court, Suffolk County, to hear and determine whether the appellant was properly served with the summons and the appeals are held in abeyance in the interim. The Supreme Court, Suffolk County, is to file its report with all convenient speed.

The affidavit by the defendant Katherine Nicholas denying that she had been personally served with process under CPLR 308 (1) sufficiently controverted the process server’s affidavit so as to require a hearing on the issue of jurisdiction (see, Skyline Agency v Ambrose Cappotelli, Inc., 117 AD2d 135 ). Balletta, J. P., Thompson, Santucci and Florio, JJ., concur.

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