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Chase Manhattan Bank v. Carlson

Appellate Division of the Supreme Court of New York, Second Department
Sep 3, 1985
113 A.D.2d 734 (N.Y. App. Div. 1985)

Opinion

September 3, 1985

Appeal from the Supreme Court, Westchester County (Stolarik, J.).


Order affirmed, without costs or disbursements.

The affidavit of service was insufficient, as a matter of law, to satisfy plaintiff's burden of establishing the exercise of due diligence in attempting to effect personal service upon the respondent before resorting to the use of the so-called "nail and mail" provisions under CPLR 308 (4) (Kaszovitz v Weiszman, 110 A.D.2d 117; Reed v Domenech, 90 A.D.2d 844). Absent proper service of a summons, a default judgment is a nullity and once it is shown that proper service was not effected the judgment must be unconditionally vacated. The existence or lack of a meritorious defense is irrelevant to the question of whether a judgment should be vacated for lack of personal jurisdiction (CPLR 5015 [a] [4]; Shaw v Shaw, 97 A.D.2d 403; Mayers v Cadman Towers, 89 A.D.2d 844; McMullen v Arnone, 79 A.D.2d 496). Brown, J.P., Weinstein, Niehoff and Lawrence, JJ., concur.


Summaries of

Chase Manhattan Bank v. Carlson

Appellate Division of the Supreme Court of New York, Second Department
Sep 3, 1985
113 A.D.2d 734 (N.Y. App. Div. 1985)
Case details for

Chase Manhattan Bank v. Carlson

Case Details

Full title:CHASE MANHATTAN BANK, N.A., Appellant, v. MARY R.S. CARLSON, Respondent…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 3, 1985

Citations

113 A.D.2d 734 (N.Y. App. Div. 1985)

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