Opinion
June 10, 1993
Appeal from the Supreme Court, New York County (Peter Tom, J.).
While the IAS Court focused upon defendant's delay in moving to vacate its default (see, Boorman v. Deutsch, 152 A.D.2d 48, 51-52, lv dismissed 76 N.Y.2d 889), its finding that process had been served on a general partner of defendant, who did not have a beard at the time of the alleged service, rested upon a fair interpretation of the evidence based, in large measure, on considerations of credibility (see, Thoreson v. Penthouse Intl., 179 A.D.2d 29, 31, affd 80 N.Y.2d 490, rearg denied 81 N.Y.2d 835) and therefore should not be disturbed. Here, unlike the cases relied upon by defendant (Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135; Aronauer v. Ohl, 80 A.D.2d 592), there was a genuine fact issue whether the actual appearance of the person allegedly served at the time of service and the description given by the process server were discrepant (see also, Matter of Chemical Bank v. Davis, 133 A.D.2d 756, appeal withdrawn 70 N.Y.2d 1003).
Concur — Carro, J.P., Rosenberger, Wallach, Kupferman and Rubin, JJ.