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.
Leave a Reply
Want to join the discussion?Feel free to contribute!