In McConnell v. Santana, a wrongful death action, the defendant failed to answer the complaint and the plaintiff was granted a default judgment. When the defendant moved to vacate he also argued that the court lacked personal jurisdiction because he was never properly served. After a Traverse hearing, the court granted his motion stating in sum, the motion “to vacate a default is granted.” The court never stated whether or not the complaint was properly served. After trial, judgment was entered in favor of the plaintiff. The defendant then moved to vacate the judgment on the grounds that the court lacked jurisdiction because he was never properly served. The Appellate Division denied the motion. The court did not address the merits of the moving papers, rather the court reasoned that if the trial court had found that the defendant had not been properly served at the Traverse hearing, it would have had no authority to take any action other than to dismiss the complaint. Since the court did not dismiss the complaint, in effect, the Supreme Court found that service was properly effected.

Thanks to Bill Kirrane for his contribution to this post.

http://www.nycourts.gov/reporter/3dseries/2011/2011_06251.htm