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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: December 8, 2019

Plaintiff Prevails at Traverse Despite Process Server’s Absence

On November 21, 2019, Justice Cohen of the New York County Commercial Division issued a decision in Eros Intl. PLC v. Mangrove Partners, 2019 NY Slip Op. 33461(U), holding that a plaintiff had established proper service despite the process server’s absence from the traverse hearing, explaining:

At the traverse hearing, the burden fell on Eros to establish, by a preponderance of the evidence, that Asensio was properly served. .

When a process server cannot be compelled with due diligence to attend the traverse hearing, the process server’s affidavit of service can satisfy the plaintiffs evidentiary burden. Under CPLR. 4531, an affidavit by a person who served, posted or affixed a notice, showing such service, posting or affixing is prima facie evidence of the service, posting or affixing if the affiant is dead, mentally ill or cannot be compelled with due diligence to attend at the trial.

The evidence established that Guskin refused to testify at the traverse hearing despite Eros’s diligent efforts. Skye Gao, an associate at Kasowitz, described in detail the steps she took on behalf of Eros to secure Guskin’s attendance. First, Gao testified that she tried calling Guskin in November 2018. Though Guskin did not answer, he called her back shortly thereafter and informed her that he cannot, personally, attend the traverse hearing because he had retired and moved to Ecuador. Gao reached out to him again, by phone, in January 2019. This time, Gao hoped that Guskin might be willing to testify via video or telephone. But in March 2019, Guskin sent a WhatsApp message responding, very adamantly, that he refuses to come in – to either come in to testify or telephone remotely. Guskin also told Gao to never contact him again. As the Court stated on the record at the hearing, Gao’s testimony credibly and persuasively showed that reasonable and vigorous attempts were made to have the witness testify live or by phone or by video and he refused to do so.

Although Asensio insists that Eros did not satisfactorily demonstrate under CPLR 4531 that Mr. Guskin could not be compelled with due diligence to attend the trial, he provides no evidence to back that assertion. Indeed, his specific arguments – the claim, for example, that Guskin was available, at least remotely were specifically refuted by the credible testimony of Eros’s counsel. Further, Asensio’s so-called investigation into Guskin’s availability after the traverse hearing simply cements the conclusion that Guskin refused to participate in the traverse hearing in any manner. Notwithstanding Asensio’s conclusory objections, the Court finds that the process server could not be compelled with due diligence to attend the traverse hearing, as contemplated by CPLR 4531. The Affidavits of Service are thus admissible to prove that Asensio was served in accordance with CPLR 308(4) and 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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