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Current Developments in the Commercial Divisions of the
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Posted: March 28, 2015

Affidavit Rebutting Process Server’s Affidavit Cannot be Conclusory

On March 24, 2015, Justice Whelan of the Suffolk County Commercial Division issued a decision in Bank of America, NA v. Simon, 2015 NY Slip Op. 50363(U), denying a motion to dismiss based on improper service.

In Bank of America, the defendant moved to dismiss on, among other grounds, “a purported lack of personal jurisdiction over defendant . . . due to improper service pursuant to CPLR 3211(a)(8).” The court denied the motion, explaining:

A process server’s affidavit of service constitutes prima facie evidence of proper service. Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits.

Here, the affidavit of service of the plaintiff’s process server constituted prima facie evidence of proper service pursuant to CPLR 308(2), and the affidavit submitted by the defendant Simon was insufficient to rebut the presumption of proper service.

(Internal quotations and citations omitted) (emphasis added). This decision illustrates the importance of providing real factual support for motions relating to jurisdiction and service and not just conclusory assertions.

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