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Failure to Allege Specific Facts to Rebut Process Server Affidavit Required Denial of Motion to Vacate Judgment w/o Hearing

The Second Department upheld Supreme Court’s denial of a motion to vacate a judgment on the ground defendant was not served.  No hearing was necessary because defendant did not swear to specific facts to rebut the facts in the process server’s affidavit:

“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'”…. Since the appellant never denied the specific facts contained in the process server’s affidavit, no hearing was required… .  Bank of NY v Samuels, 2013 NY Slip Op 03958, 2nd Dept, 6-5-13

 

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Release Must Be Unambiguous to Allow Dismissal of Complaint Note of Issue Which States Discovery Not Complete Is a Nullity