Wang v. Zhao

Order, Supreme Court, New York County (Shlomo Hagler, J.), entered May 4, 2016, which granted defendant Dan Zhao’s motion to confirm the report of a special referee, made after a hearing, recommending dismissal of the complaint against Zhao based on lack of personal jurisdiction, denied plaintiff’s cross motion to reject the report’s recommendation, and dismissed the complaint as against Zhao, unanimously affirmed, without costs. Order, same court and Justice, entered August 9, 2016, which, to the extent appealable, denied plaintiff’s motion to renew, unanimously affirmed, and the appeal therefrom otherwise dismissed, without costs.

Plaintiff’s contention that Zhao testified falsely at the traverse hearing is unsupported by the record. Contrary to plaintiff’s argument, Zhao acknowledged in his testimony that he used one apartment at 130 Water Street as his mailing address on various documents and that he owned another apartment in that building. The Small Claims Court records relied upon by plaintiff do not contradict Zhao’s testimony and, in any event, are irrevelant because they postdate plaintiff’s attempted service on Zhao by almost two years.

The relevant inquiry at the traverse hearing was whether the address where plaintiff’s process server attempted to serve the summons and complaint was Zhao’s “dwelling place or usual place of abode” (CPLR 308 [2]). Zhao’s testimony that he did not reside in either apartment at 130 Water Street was corroborated by the doorman’s testimony, and plaintiff has pointed to no contradictory evidence.

The special referee properly denied plaintiff’s request for an adjournment or continuance, because plaintiff did not adequately explain her failure to appear personally or to have a witness present, and Zhao had come from China for the hearing.

The motion to renew was not based on new facts that would change the prior determination (see CPLR 2221 [e] [2]; see also Matter of Naomi S. v Steven E., 147 AD3d 568 [1st Dept 2017]), and no appeal lies from an order denying reargument (see Naomi S., 147 AD3d 568).

We have considered plaintiff’s remaining arguments and find them unavailing.

Concur — Friedman, J.P., Mazzarelli, Moskowitz, Gische and Gesmer, JJ.