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Tovia Capital, LLC v Katebi (2008 NY Slip Op 51957(U))
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Decided on September 29, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ 2007-120 K C.
Tovia Capital, LLC, Respondent,
against
Sorour Katebi, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County, (Kathryn E. Freed, J.), entered November 1, 2006. The order, following a traverse hearing held pursuant to a prior order of said court (Dolores L. Waltrous, J.), dated June 21, 2006, granting a motion by defendant to vacate a default judgment to the extent of setting the matter down for a traverse hearing and for final determination of the motion, "overruled" the traverse.
Appeal dismissed and matter remanded to the court below for final determination of defendant's motion to vacate the default judgment.
In this action to recover the balance due on a credit card account, defendant Sorour Katebi moved to vacate a default judgment which was entered against her and for leave to interpose an
file:///C|/Users/Peter/Desktop/NY/1/2008_51957.htm[4/21/2013 11:09:42 AM] Tovia Capital, LLC v Katebi (2008 NY Slip Op 51957(U))
answer. In her affidavit in support of the motion, defendant stated that she was not served with the summons and complaint and that there was no one in her household who fit the description of the person of suitable age and discretion upon whom the papers were allegedly served. Defendant also alleged that she had a meritorious defense in that she did not owe the sums sought. By a form order dated June 21, 2006, the Civil Court granted defendant's motion "solely to the extent of setting this matter down for Traverse and final determination of this motion on 8/9/06."
At the traverse hearing, the court entered into evidence the affidavit of service of the summons and complaint, as well as the process server's licenses and logbook. The process server testified, based upon his logbook, that he served a person who described himself as defendant's "male relative" named Mr. Katebi. Defendant testified that her former husband had moved out of the apartment a number of years prior to the alleged service and, moreover, his name was Mr. Hooshiari. In any event, neither her former husband nor any of the other residents of defendant's apartment building matched the description which was set forth in the affidavit of service. Following the hearing, the court stated that it did not find defendant's testimony incredible but found that defendant had failed to overcome the "presumption" of service. Accordingly, the [*2]court "overruled" the traverse. Defendant's appeal ensued.
The order dated June 21, 2006 set the matter down for a traverse hearing and for final determination of the motion. The order dated November 1, 2006 overruling the traverse disposed of one of the issues raised in defendant's motion to vacate the default judgment, to wit, the issue whether service was proper (see CPLR 5015 [a] [4]). However, as neither the order appealed from nor the prior order clearly addressed defendant's claim of an excusable default and meritorious defense (CPLR 5015 [a] [1]), defendant's motion has not been finally determined and it remains pending and undecided. Since no appeal as of right lies from an order which does not constitute a final determination of a motion, the appeal is dismissed (see e.g. Ameen v Ameen, 294 AD2d 319 [2002]; Lavi v Old Cedar Dev. Corp., 281 AD2d 397 [2001]) and the matter remanded for final determination of defendant's motion. Pesce, P.J., Weston Patterson and Rios, JJ., concur. Decision Date: September 29, 2008

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