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THE PROCESS SERVER’S AFFIDAVIT DID NOT DEMONSTRATE THE PERSON SERVED WAS AN AGENT OF DEFENDANT CORPORATION; CLERK’S JUDGMENT VACATED (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating the clerk’s (default) judgment for over $420,000, determined the process server’s affidavit did not demonstrate the person served with the summons and complaint was an agent of defendant corporation:

The plaintiff failed to establish that personal jurisdiction had been acquired over the defendant through proper service of process. Although a process server’s affidavit of service ordinarily constitutes prima facie evidence of proper service … , here, the affidavit of service contained no indication that Lewis was an agent of the defendant authorized to accept service on the defendant’s behalf (see CPLR 311[1][a] …). Accordingly, the Supreme Court should have granted, pursuant to CPLR 5015(a)(4), that branch of the defendant’s motion which was to vacate the clerk’s judgment. Bold Broadcasting, LLC v Wawaloam Reservation, Inc., 2024 NY Slip Op 05196, Second Dept 10-23-24

Practice Point: Here the process server’s affidavit did not demonstrate the person served with the summons and complaint had the authority to accept service for defendant corporation. The default judgment was vacated.​

 

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