You are here: / / WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE...
,

WHERE DEFENDANTS AVER SPECIFIC FACTS WHICH REBUT THE STATEMENTS IN THE PROCESS SERVER’S AFFIDAVIT, AN EVIDENTIARY HEARING ON WHETHER THE DEFENDANTS WERE SERVED WITH THE SUMMONS AND COMPLAINT IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendants presented sufficient facts to rebut the presumption they were properly served with the summons and complaint, requiring a hearing:

“Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served” … Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service … . “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit, and necessitates an evidentiary hearing” … . “If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue”… .

Here, the process servers’ affidavits of service constituted prima facie evidence of valid service upon the defendants at the subject New York and Florida properties … . However, since the defendants’ sworn denial of receipt of process at both properties contained specific facts to rebut the statements in the process servers’ affidavits, the presumption of proper service was rebutted and an evidentiary hearing was required … . Aikens v Kouchnerova, 2023 NY Slip Op 03218, Second Dept 6-14-23

Practice Point: A defendant’s mere denial of receipt of a summons and complaint is not enough to rebut the presumption of valid service. But where a defendant avers specific facts which rebut the statements in the process server’s affidavit, an evidentiary hearing is required.

 

You might also like
Only (No-Fault) “N-F 5” Form Triggers 30-Day Period to Deny or Pay a Claim
SUPREME COURT’S GRANTING OF DEFENDANTS’ SUPPRESSION MOTIONS REVERSED IN THIS TRAFFIC STOP CASE; THE REPORT THAT THE VEHICLE HAD BEEN INVOLVED IN AN ARMED ROBBERY THAT DAY AND THE DEFENDANTS’ LACK OF COOPERATION AT THE TIME OF THE STOP JUSTIFIED BREAKING THE VEHICLE’S WINDOWS, REMOVING THE DEFENDANTS AND HANDCUFFING THEM; OBSERVING A FIREARM IN THE VEHICLE PROVIDED PROBABLE CAUSE TO ARREST (SECOND DEPT).
Criteria for Labor Law 200 Claim Explained
EVIDENCE DID NOT SUPPORT NEGLECT FOR FAILURE TO PROVIDE ADEQUATE SHELTER, EVIDENCE DEMONSTRATED THE HOME WAS IN DISARRAY BUT NOT THAT IT WAS UNSANITARY OR UNSAFE (SECOND DEPT).
THERE IS A QUESTION OF FACT WHETHER PLAINTIFF WAS DEFENDANT’S EMPLOYEE SUCH THAT THE PROTECTIONS OF THE LABOR LAW APPLY IN THIS LADDER-FALL CASE; DEFENDANT AGREED TO FIX PLAINTIFF’S CAR IN RETURN FOR PLAINTIFF’S FIXING THE ROOF OF DEFENDANT’S REPAIR SHOP (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE PROCEEDED WITH THE CUSTODY HEARING WITHOUT A SEARCHING INQUIRY INTO WHETHER RESPONDENT FATHER WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING HIS RIGHT TO COUNSEL (SECOND DEPT).
FAMILY COURT SHOULD HAVE MADE NEGLECT FINDING ALLOWING JUVENILE TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SJIS).
PLAINTIFF COULD BE HELD IN CONTEMPT FOR FAILURE TO COMPLY WITH A COURT ORDER TO POST A BOND, EVEN THOUGH THE BOND REQUIREMENT WAS LATER ELIMINATED ON APPEAL, HOWEVER PLAINTIFF PRESENTED CREDIBLE EVIDENCE HE WAS UNABLE TO OBTAIN THE BOND WHICH IS A DEFENSE TO CIVIL AND CRIMINAL CONTEMPT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO... AFTER PLAINTIFFS’ CAR WAS SERVICED, A TIRE (WHEEL?) FELL OFF, CAUSING...