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DEFENDANT, WHO MOVED TO VACATE THE DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION, SUBMITTED SUFFICIENT EVIDENCE TO WARRANT A HEARING ON WHETHER HE WAS PROPERLY SERVED WITH THE COMPLAINT; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant, who had defaulted in this foreclosure action, was entitled to a hearing on whether he had been properly served with the complaint:

“Ordinarily, a process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service …”. “A defendant moving to vacate a default pursuant to CPLR 5015(a)(4) must overcome the presumption raised by such an affidavit of service” …. . “While a mere conclusory denial of service will not suffice to rebut a prima facie showing of proper service, the sworn denial, combined with documentary and other evidence supporting such a claim, is sufficient to rebut the plaintiff’s prima facie showing of proper service and to necessitate an evidentiary hearing” … . “If the presumption is rebutted, a hearing is necessary, at which the plaintiff must establish jurisdiction by a preponderance of the evidence” … .

… [T]he defendant demonstrated his entitlement to a hearing on the issue of service through his affidavit and evidentiary submissions. The defendant averred that he has never lived at the address where he was purportedly served on February 28, 2008, and that he lived at a different address, 1222 35th Avenue in Long Island City, from 2004 through February 2008. He submitted proof of his residence at 1222 35th Avenue. Further, he submitted proof that the process server who allegedly served the defendant on February 28, 2008, swore that he served another individual in South Ozone Park at the exact same time. The defendant also submitted evidence that, in 2016, this particular process server’s application to renew his license as an individual process server was denied by the New York City Department of Consumer Affairs on the basis that he had falsified affidavits of service. Since the defendant’s submissions rebutted the presumption of proper service established by the process server’s affidavit, the Supreme Court should have directed a hearing to determine whether personal jurisdiction was acquired over the defendant … . Bank of N.Y. Trust Co., N.A. v Herbin, 2025 NY Slip Op 04865, Second Dept 9-10-25

Practice Point: Consult this decision for the proof requirements for a hearing on whether the court acquired jurisdiction through proper service of the complaint.​

 

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NO FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS RELIED UPON BY THE REFEREE... ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM,...