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DEFENDANT REBUTTED THE PROCESS SERVER’S AFFIDAVIT; A TRAVERSE HEARING IS NECESSARY (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant rebutted the process server’s affidavit and a traverse hearing should have been held:

Defendant’s affidavit was sufficient to rebut plaintiff’s prima facie evidence of service. While defendant did not dispute that the service address listed was her home address, she stated that she was not personally served, that she was not the woman described in the affidavit, and provided a detailed, nonconclusory account of how she was in a different state at the time of service, providing childcare to her granddaughter … . In addition, the discrepancies identified in the descriptions of the woman served, who was white and had brown and blonde hair, and defendant, who is African American, were not “minor” … . US Bank Trust N.A. v Smith, 2026 NY Slip Op 05463, First Dept 9-29-26

Practice Point: Consult this decision for insight into the nature of evidence deemed sufficient to rebut a process server’s affidavit and necessitate a traverse hearing.

 

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