You are here: / / THE PROOF THE DEFENDANT WAS PROPERLY SERVED WAS NOT REBUTTED BY THE DEFENDANT’S...
,

THE PROOF THE DEFENDANT WAS PROPERLY SERVED WAS NOT REBUTTED BY THE DEFENDANT’S UNSUBSTANTIATED ALLEGATIONS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the proof that defendant was properly served with the summons and complaint was not rebutted by the defendant’s unsubstantiated allegations:

“At a hearing to determine the validity of service of process, the burden of proving personal jurisdiction is upon the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence” … .”In reviewing a determination made after a hearing, this Court’s authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses” … .

Here, viewing the evidence in its totality, the plaintiff met her burden of proving by a preponderance of the evidence that jurisdiction over the defendant was obtained by proper service of process … . At the hearing, the process server testified to his independent recollection of his personal delivery of the papers to a person of suitable age and discretion at the defendant’s dwelling, explained why he recalled this particular delivery, and gave testimony about the mailing. Among the exhibits the plaintiff presented at the hearing was a photograph, with a date, time, and GPS coordinates, depicting where the process server delivered the papers. The defendant’s testimony verified that the person of suitable age and discretion, as named and described in the process server’s affidavit, was consistent with the name and description of one of his co-tenants, his father. Although the defendant testified that his father was out of the country at the time of delivery, the defendant’s testimony, which was unsubstantiated and, in critical respects, without a basis of personal knowledge, was insufficient to support the determination that he was not properly served. Sturrup v Scaria, 2020 NY Slip Op 04506, Second Dept 8-12-20

 

You might also like
EVERY CAUSE OF ACTION WAS ERRONEOUSLY DISMISSED AS TIME-BARRED; THE PROPER CRITERIA FOR DETERMINING THE CORRECT STATUTES OF LIMITATIONS DISCUSSED IN SOME DETAIL (SECOND DEPT).
Testimony by the Vehicle Owner that His Vehicle Was “Missing” at the Time of the Accident Did Not Overcome the Statutory Presumption the Vehicle Was Being Driven with the Owner’s Consent at the Time of the Accident
SUPREME COURT, IN THIS NEGLIGENT SUPERVISION ACTION, HAD USED CRITERIA FOR DETERMINING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM WHICH HAS SINCE BEEN CHANGED BY THE COURT OF APPEALS, MATTER REMITTED FOR A RULING UNDER THE CURRENT LAW (SECOND DEPT).
Papers Sufficient to Require Suppression Hearing—No Need to Allege Expectation of Privacy Where Police Act Illegally
DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HER FALL AND DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DANGEROUS CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.
Criteria for Motion to Dismiss for Failure to State a Cause of Action (Where Documentary Evidence Submitted) Explained—Criteria for Motion to Dismiss Based on Documentary Evidence Explained—Pleading Requirements for Legal Malpractice Explained
Construction Manager Not Liable Unless Delegated Authority of General Manager
ABUTTING PROPERTY OWNER ENTITLED TO SUMMARY JUDGMENT IN THIS SIDEWALK SLIP AND FALL CASE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE 90-DAY CONTRACTUAL STATUTE OF LIMITATIONS WAS VALID AND ENFORCEABLE; THE... THE EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION,...