Justice Robert McDonald
Plaintiff sought to recover damages for serious personal injuries she allegedly sustained when an allegedly defective window of the apartment fell on her hand while she was working as a home health care aide for codefendant Rivas in a premises owned by McSweeney, in this negligence action. No answer or appearance was made by defendants, and an inquest was held with the court awarding plaintiffs over $325,000. McSweeney claimed he first received notice of the action and default judgment when he was served in 2013 with a sheriff’s notice of levy and sale. Defendants moved to vacate the default and dismiss the complaint alleging lack of personal jurisdiction as McSweeney did not receive a copy of the summons and complaint as he did not reside in the subject premises at the time of service. Plaintiffs noted McSweeney was served through Rivas as a person of suitable age and discretion. The court disagreed finding as Rivas’ interests were adverse to that of McSweeney, Rivas was inappropriate to act as the recipient of service for McSweeney. Thus, it ruled the service of the summons and complaint on Rivas under CPLR 308(2) was defective and invalid, granting McSweeney’s motion to vacate the default, and dismiss the complaint. Yet, plaintiffs were granted leave to re-serve.
