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finding that a Moscow resident's New York vacation house, though only visited by defendant sporadically, could be considered a "usual place of abode."
Summary of this case from Goetz v. Synthesys Technologies, Inc.Opinion
Argued October 16, 2000.
November 13, 2000.
In an action, inter alia, to recover damages for conversion, the defendants Alexei Kouznetsov and Zoya Kuznetsova appeal from an order of the Supreme Court, Kings County (Deutsch, J.H.O.), dated September 29, 1999, which, after a hearing to determine the validity of service of process, denied their motion to vacate an order of the same court (Rigler, J.), dated January 20, 1999, granting the plaintiff's motion to enter judgment against them upon their failure to appear or answer the complaint.
Barry Leibowicz, Great Neck, N.Y. (Julie Altman of counsel), for appellants.
Goldberg Sager Associates, Brooklyn, N.Y. (Harold M. Hoffman of counsel), for respondent.
Before: THOMAS R. SULLIVAN, J.P., SONDRA MILLER, MYRIAM J. ALTMAN, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the appellants' contentions, the record amply supports the court's determination that personal jurisdiction was acquired over the defendant Zoya Kuznetsova by proper service pursuant to CPLR 308(2) (see, F.I. duPont, Glore, Forgan Co. v. Chen, 41 N.Y.2d 794; Chesman v. Lippoth, 271 A.D.2d 567; Roldan v. Thorpe, 11 7 A.D.2d 790; Braun v. St. Vincent's Hosp. Med. Ctr., 91 A.D.2d 985). Issues of credibility are generally for the court and its determination will not be disturbed if supported by a fair interpretation of the evidence (see, Koslosky v. Koslosky, 267 A.D.2d 357; McGuirk v. Mugs Pub, 250 A.D.2d 824; Federal Home Loan Mtge. Corp. v. Sundaram, 238 A.D.2d 372). The record supports the Supreme Court's determination and will not be disturbed.
The Supreme Court also correctly found that the defendant Alexei Kouznetsov was properly served pursuant to CPLR 308(4) (see, National Dev. Co. v. Triad Holding Corp., 930 F.2d 253, cert denied sub nom. Knashoggi 502 U.S. 968; see also, Howard Johnson's Intl., Inc. v. Wang, 181 F.3d 82; ITC Entertainment, Ltd. v. Nelson Film Partners, 714 F.2d 217; Karlin v. Avis, 326 F. Supp. 1325). This defendant, a resident of Moscow, only sporadically stayed in his New York vacation house that he owned and shared with, among others, his infant daughter and her mother, the defendant Janna Boulakh. Nevertheless, this house was properly found to be his "dwelling place or usual place of abode within the state" (CPLR 308). The appellants' reliance upon Mangold v. Newman ( 57 N.Y.2d 627) is misplaced, as the only issue decided in that case was the defendant's residence. In the instant case, it is uncontroverted that Alexei Kouznetsov's residence is in Moscow. Moreover, Mangold v. Newman (supra) concerned an issue involving service upon an American citizen with multiple domestic residences, not upon a foreign citizen with a principal residence abroad (see, National Dev. Co. v. Triad Holding Corp., supra). Under the circumstances of this case, we are satisfied that service was effectuated at Alexei Kouznetsov's "dwelling place or usual place of abode within the state " (CPLR 308) and thus jurisdiction over him was acquired.
The appellants' remaining contentions are without merit.