New York State Higher Education Services Corporation, Respondent, v. Dean Perchik, Appellant

New York State Higher Education Services Corporation, Respondent, v Dean Perchik, Appellant. (Appeal No. 3.) [617 NYS2d 610] [MAJORITY] —Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in failing to dismiss the complaint based on lack of personal jurisdiction. Plaintiff purported to serve defendant pursuant to CPLR 308 (2), which requires delivery of the summons "to a person of suitable age and discretion at the actual * * * dwelling place or usual place of abode”. The sworn statement of defendant that he did not reside at the address where the process server purported to have served defendant by serving defendant’s father was unrefuted. Thus, plaintiff failed to show compliance with CPLR 308 (2) (see, Schurr v Fillebrown, 146 AD2d 623, 624). The court also erred in relying on Sherrill v Pettiford (172 AD2d 512) and Anello v Barry (149 AD2d 640) in finding that defendant was estopped from challenging the propriety of the service because it was made at the address on his driver’s license. There are no allegations that defendant engaged in conduct designed to conceal his correct address or that plaintiff relied on the address on defendant’s driver’s license. We note that the court further erred in granting plaintiff’s motion for summary judgment. Plaintiff’s proof consisted of an affidavit asserting that, according to plaintiff’s business records, the loan had never been repaid. The affidavit of defendant’s father asserting that he had repaid the loan and that he no longer had records from the 1970s raised an issue of fact requiring a trial. (Appeal from Order of Supreme Court, Suffolk County, Floyd, J.—Reargument.) Present—Pine, J. P., Lawton, Wesley, Doerr and Boehm, JJ.