Kasowitz, Benson, Torres & Friedman, LLP v. Cao, 105 A.D.3d 521 (N.Y. App. Div. 2013). · Go Syfert
Kasowitz, Benson, Torres & Friedman, LLP v. Cao, 105 A.D.3d 521 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
5 citation events (5 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Delgado v. Vega (nyappdiv, 2019-04-26)
Top citers, strongest first. 2 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Delgado v. Vega
N.Y. App. Div. · 2019 · confidence medium
Nevertheless, inasmuch as " default orders are disfavored in cases involving the custody or support of children, and . . . the rules with respect to vacating default judgments are not to be applied as rigorously in those cases' " ( Matter of Strumpf v Avery , 134 AD3d 1465, 1465-1466 [4th Dept 2015]), we conclude that the mother, who had physical custody of the child from the child's birth until the father took custody pursuant to the default order, established a meritorious defense to the father's petition and raised an issue of fact whether she was served with the petition, thus warranting a…
discussed Cited as authority (rule) Central Mortgage Co. v. Ward
N.Y. App. Div. · 2015 · confidence medium
In the event that the Supreme Court determines that service was proper under CPLR 308 (2), it must then decide whether to grant Ward discretionary relief under CPLR 317 (see Kasowitz, Benson, Torres & Friedman, LLP v Cao, 105 AD3d 521, 521-522 [2013]).
Retrieving the full opinion text from the archive…
Kasowitz, Benson, Torres & Friedman, LLP
v.
Shelly Cao
Appellate Division of the Supreme Court of the State of New York.
Apr 9, 2013.
105 A.D.3d 521
Andrias, Daniels, Feinman, Freedman, Manzanet, Moskowitz.
Cited by 3 opinions  |  Published

Order, Supreme Court, New York County (Paul Wooten, J.), entered June 27, 2011, which denied the motion of defendant Shelly Cao to vacate a default judgment against her, unanimously reversed, on the law, without costs, and the motion granted to the extent of remanding the matter for a traverse hearing to determine whether the court had jurisdiction to render the default judgment.

Cao’s sworn, nonconclusory claim that the building at which she was allegedly served was not her actual dwelling place or usual place of abode raised an issue of fact as to whether plaintiff validly served her with process pursuant to CPLR 308 (4) so as to vest the court with jurisdiction to render the default judgment. Accordingly, a traverse hearing must be held to determine whether Cao is entitled to relief from the judgment pursuant to CPLR 5015 (a) (4) (see Cordova v Thessalonica Ct. Assoc., 35 AD3d 256 [1st Dept 2006]; see also Finkelstein Newman Ferrara LLP v Manning, 67 AD3d 538, 538-539 [1st Dept 2009]).

If, after the traverse hearing, the court finds that the summons was not affixed to Cao’s dwelling place or usual place of abode, then it must grant that branch of Cao’s motion seeking to vacate the default judgment pursuant to CPLR 5015 (a) (4) and dismiss the action. If, however, the court determines that service was proper under CPLR 308 (4), then it must make a factual determination as to whether Cao personally received notice of the summons in time to defend pursuant to CPLR 317. If the court finds that Cao did not personally receive notice of the summons in time to defend, then she would be entitled to relief pursuant to CPLR 317 because she moved to vacate the default judgment within a year after she obtained knowledge of entry of the judgment and because she established a potential meritori[*522] ous defense—namely, that she is not personally liable for the defendant corporation’s unpaid legal fees (see e.g. T.D. Bank, N.A. v Halcyon Jets, Inc., 99 AD3d 431 [1st Dept 2012]).

Concur—Andrias, J.E, Moskowitz, Freedman, Manzanet-Daniels and Feinman, JJ.