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Deliberate Avoidance of Service of Process 

The First Department determined the defendants, who deliberately attempted to avoid notice of the summons and complaint, did not raise an issue of fact in the face of the affidavits of the process server:

Relief under CPLR 317 is not warranted where, as here, defendants’ failure to obtain proper notice was the result of a deliberate attempt to avoid such notice … . The individual defendant averred that neither he nor the corporate defendant received actual service of the summons and complaint, or of the supplemental summons and amended complaint, or of any of the notices served by plaintiff following commencement of the action. However, this conclusory denial of receipt is insufficient to raise an issue of fact as to proper service in the face of plaintiff’s submission of affidavits from a process server, which constitute prima facie evidence of proper service … .  Pina v Jobar, USA, LLC, 2013 NY Slip Op 01794, 9570N, 300756/08, 1st Dept. 3-19-13

 

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