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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: February 18, 2021

Even When Process Server Did Not Testify, Conclusory Denials of Receipt of Service Insufficient to Rebut Presumptive Validity of Affidavit of Service

On February 9, 2021, the First Department issued a decision in Eros Intl. PLC v. Mangrove Partners, 2021 NY Slip Op. 00793, holding that even when the process server did not testify, conclusory denials of receipt of service were insufficient to rebut the presumptive validity of an affidavit of service, explaining:

Plaintiff established by a preponderance of the evidence that it properly served defendant with process and therefore that the court had jurisdiction over him. The court properly admitted the affidavits of service as prima facie evidence of service, based on its reasonable determination that the process server, Corey Guskin, could not, with an exercise of due diligence, be compelled to attend at the hearing. Plaintiff’s witness, Skye Gao, Esq., testified about the steps that were taken to secure Guskin’s attendance and Guskin’s adamant response that he would not attend, and the court’s determination that Gao’s testimony was credible is entitled to our deference.

The court providently exercised its discretion in allowing Gao’s testimony and documents although she had not been disclosed as a witness. The law firm partner on plaintiff’s case testified about the firm’s efforts to secure Guskin’s appearance, but he had not communicated directly with Guskin about his availability; Gao had done so. As defendant had had notice of the affidavits of service and Gao’s efforts to secure Guskin’s appearance, and the partner had addressed them during the course of his testimony, defendant was not prejudiced by Gao’s testimony.

As shown in his affidavits of service, Guskin tried to serve defendant in person at his undisputed residence five times, on weekdays and on a Saturday and at different times of day, and only when he had failed did he affix a copy of the pleadings to defendant’s door, followed by a mailing. These efforts at service constitute the requisite due diligence under the statute. Guskin was not required to try to serve defendant at his place of business before nailing and mailing. Nor was plaintiff required first to try service pursuant to CPLR 308(2). Defendant’s conclusory denials of receipt of service failed to rebut the presumption of proper service created by the affidavits.

(Internal citations omitted).

The rules regarding how you start a lawsuit and bring the defendants into it can sometimes be esoteric. Failing properly to serve a defendant with the papers initiating an action can result in its dismissal, regardless of whether the defendant had actual notice of the lawsuit. 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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