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Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 26, 2021

Evidentiary Hearing on Service Required When Defendant Overcomes Prima Facie Validity of Affidavit of Service

On March 19, 2021, the Fourth Department issued a decision in Garvey v. Global Asset Mgt. Solutions, Inc., 2021 NY Slip Op. 01664, holding that there must be an evidentiary hearing on service when a defendant overcomes the prima facie validity of an affidavit of service, explaining:

Plaintiff initially contends that the court should have denied defendant’s motion because the record established that defendant was properly served pursuant to CPLR 308(2). We reject plaintiff’s contention. That section permits personal service on a party by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by mailing the summons to the person to be served at his or her last known residence. Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing. Here, the presumption of service was created by the affidavit of plaintiff’s process server, but defendant rebutted that presumption by submitting, inter alia, his sworn affidavit in which he averred that he had never been personally served, that since at least 2013 he had rented out the dwelling at the address reflected on the affidavit of the process server, that it had been rented to the individual reflected on the affidavit of service, that defendant did not live or otherwise reside at the address in any form, and instead that he had been living at another address at the time of the purported service. Contrary to plaintiff’s contention, defendant’s submissions raised a genuine question on the issue whether service was properly effected in accordance with CPLR 308(2).

(Internal quotations and 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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