Imbriale v. Imbriale

Mangano, J., dissents and votes to reverse the order appealed from and remit the matter to the Supreme Court, Kings County, for a hearing in accordance with the following memorandum.

¶ The sole basis of defendant’s motion to vacate a default judgment of divorce dated July 20,1981, as evidenced by her motion papers and the colloquy at Special Term on December 20, 1982, the return date of the motion, was the claim that she had not been personally served with a summons and complaint and that the court therefore lacked jurisdiction to enter the default judgment against her (CPLR 5015, subd [a], par 4). Under these circumstances, it was error for Special Term to have granted the motion on a different ground than that raised in the moving papers, i.e., that the defendant was never notified of the actual date that the case would appear on the Uncontested Matrimonial Calendar. In* any event, the defendant was not entitled to notice of the date of the inquest in view of the fact that she had not appeared in the action and less than one year elapsed since her default (see CPLR 3215, subd [f], par 1). H However, the matter should be remitted to Special Term for a hearing, in view of the closely contested factual dispute regarding service of process upon the defendant in this matrimonial action (Halvorsen v Halvorsen, 88 AD2d 581).