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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: January 29, 2021

Traverse Hearing Required When Defendant Defeats Prima Facie Validity of Affidavit of Service

On January 20, 2021, the Second Department issued a decision in US Bank N.A. v. Joseph, 2021 NY Slip Op. 00323, ordering a traverse hearing when the defendant defeated the prima facie validity of an affidavit of service, explaining:

The court does not have personal jurisdiction over a defendant when a plaintiff fails to properly effectuate service of process. In those instances in which process has not been served upon a defendant, all subsequent proceedings will be rendered null and void. Ordinarily, the affidavit of a process server constitutes a prima facie showing of proper service, but when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.

Here, the process server’s affidavit established, prima facie, that the defendant was served with process pursuant to CPLR 308(2). However, in the affidavit submitted in support of his motion, the defendant averred that, at the time of the alleged service, he did not live at the address recited in the affidavit of service as being his residence, but rather, he lived at the mortgaged premises. Further, the defendant submitted the mortgage, which required him to occupy the mortgaged premises for a certain period of time. Additionally, the defendant submitted material that called into question the veracity of the process server. Under the circumstances of this case, a hearing is required on the issue of whether the defendant was properly served with process.

(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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