Federal Deposit Insurance v. Evangelista

Order, Supreme Court, Nassau County (Gabriel Kohn, J.), entered January 17, 1995, which, inter alia, in an action to foreclose a mortgage, granted plaintiff receiver’s motion for summary judgment upon finding, after a hearing, that the court had personal jurisdiction over defendant-appellant mortgagor, unanimously affirmed, with costs. A preponderance of the evidence at the traverse, including the process server’s testimony, affidavit of service and logbook, established that the summons and complaint were delivered to defendant’s wife, a person of suitable age and discretion, on June 8,1994, and mailed the next day to defendant’s residence, in accordance with CPLR 308 (2). The discrepancies between the process server’s description of defendant’s wife and her actual height, weight and first name are not so significant as to warrant disturbing the hearing court’s finding that she was served (see, Black v Pappalardo, 132 AD2d 640; Kardanis v Velis, 90 AD2d 727). To the contrary, that defendant’s wife, who speaks English with a foreign accent and had "extreme difficulty” expressing herself at the hearing, and who stated at the hearing that her name is "Antonia”, was identified in the affidavit of service as "Antoinette”, is a circumstance that reflects well on the process server’s credibility. Concur—Rosenberger, J. P., Rubin, Nardelli and Tom, JJ.