74 A.D.2d 540
PROCEDURAL HISTORY: Respondent husband sought review from an order of the Family Court, New York County (New York), which denied the husband's motion to dismiss petitioner wife's action for support for lack of proper service.
FACTS: The husband and wife were separated. The husband was a non-resident of the city and was served the summons and petition at the wife's apartment while he was visiting the city. The husband contended that service was improper because the wife used deception in luring him into the trial court's jurisdiction. The wife contended that they had used her apartment as an alternate residence throughout their marriage and that the husband was voluntarily in the city at the time of service. The court affirmed the order of the trial court.
The court held that the husband's motion to dismiss the wife's petition was properly denied because the wife's use of deception did invalidate the service of the summons and petition on the husband where her statement that she did not request that the husband come into the city was uncontroverted.
The court found that jurisdiction over the husband could be inferred because he acknowledged that during the course of the marriage he spent one weekend a month in the apartment, that he arrived at the apartment on the date of service to remove his remaining clothes, and that he came to the city from time to time during the week on business and social occasions.
RULES:-When a nonresident defendant or respondent has been enticed into the jurisdiction by fraud and deceit for the purpose of obtaining service upon him, the service thereby effectuated will be vacated.
-If the defendant is not lured into the jurisdiction, but is here of his own free will, the service will not be invalidated merely because it was accomplished through the use of deception.
CONCLUSION: The court affirmed the order of the trial court denying the husband's motion to dismiss the wife's support petition on the ground of improper service.
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