Sackman Mortgage Corp. v. West 104th Street Apartment Corp.

—Judgment, Supreme Court, New York County (Peter Tom, J.), entered February 7, 1992, awarding plaintiff foreclosure of its mortgage, and bringing up for review an order of the same court and Justice, dated August 27, 1991, denying defendant-appellant’s motion to vacate its default in appearing and to dismiss the action for lack of jurisdiction, unanimously affirmed, with costs. Appeal from the order, same court and Justice, entered on or about September 9, 1992, which denied defendant-appellant’s motion to reargue its prior motion to vacate its default, unanimously dismissed as nonappealable, without costs. While the IAS Court focused upon defendant’s delay in moving to vacate its default (see, Boorman v Deutsch, 152 AD2d 48, 51-52, lv dismissed 76 NY2d 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 AD2d 29, 31, affd 80 NY2d 490, rearg denied 81 NY2d 835) and therefore should not be disturbed. Here, unlike the cases relied upon by defendant (Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135; Aronauer v Ohl, 80 AD2d 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given by the process server were discrepant (see also, Matter of Chemical Bank v Davis, 133 AD2d 756, appeal withdrawn 70 NY2d 1003). Concur—Carro, J. P., Rosenberger, Wallach, Kupferman and Rubin, JJ.