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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: June 3, 2019

Defendant Fails to Overcome Presumption of Proper Service

On May 29, 2019, the Second Department issued a decision in Wells Fargo Bank, NA v. Burshstein, 2019 NY Slip Op. 04224, holding that a defendant had failed to overcome the presumption of proper service, 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 defendant failed to rebut the presumption of proper service established by the affidavit of service attesting that the defendant was served with the summons and complaint on April 22, 2010, at the National Drive address. In support of his motion, the defendant submitted an affidavit in which he averred that he was never served at his home address and that the plaintiff failed to serve him with the summons and complaint. However, after the alleged service on April 22, 2010, the defendant did not specifically deny receiving copies of the summons and complaint. Nor did the defendant deny that the National Drive address was his last known residence, as alleged in the affidavit of service. Moreover, although the defendant denied that he resided at the National Drive address on April 22, 2010, and stated that he lived at a specified address in Manhattan (hereinafter the Manhattan address) on that date, the ConEdison “billing history” he submitted did not show ConEdison service at the Manhattan address in April 2010, and thus, was insufficient to demonstrate that the defendant resided at the Manhattan address on April 22, 2010. Further, although the defendant submitted an income tax return showing that his home address in 2009 was the Manhattan address, he did not submit an income tax return for 2010, showing that his home address in 2010 was still the Manhattan address. Thus, the defendant failed to substantiate his claim that he did not reside at the National Drive address on April 22, 2010, and the Supreme Court properly found that service on the defendant on that date was valid.

(Internal quotations and citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. As shown here, if a process servicer claims in a sworn affidavit that you were served, you have to overcome that presumption with more than bare denials. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have a question regarding the proper way to serve a defendant, bringing them into a lawsuit.

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