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HERE MOTHER’S CONCLUSORY AFFIDAVIT CLAIMING SHE WAS NOT SERVED WITH THE SUMMONS AND COMPLAINT BUT RATHER FOUND THE PAPERS ON THE GROUND IN FRONT OF THE FRONT DOOR WAS CONCLUSORY AND INSUFFICIENT TO REBUT THE PROCESS SERVER’S AFFIDAVIT; THEREFORE NO HEARING SHOULD HAVE BEEN HELD AND THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the conclusory affidavit by defendants’ mother, alleging she was not served with the summons and complaint but rather found the papers on the ground in front of her front door, was not sufficient to rebut the process server’s affidavit demonstrating proper service upon a person identified as “aunt:”

… [T]he process server’s affidavits constituted prima facie evidence that the defendants were properly served pursuant to CPLR 308(2) … . Contrary to the defendants’ contention, the defendants’ mother’s affidavit was insufficient to rebut the presumption arising from the process server’s affidavits because it was conclusory and not substantiated by specific facts … . The defendants’ mother’s conclusory averment that she did not receive service was insufficient to rebut the statement in the process server’s affidavits that an “AUNT” had accepted service. Furthermore, the defendants’ mother did not assert that there was no one else present at the premises who could have accepted service.

Therefore, because the defendants’ mother’s affidavit was insufficient to rebut the presumption of proper service, a hearing was not warranted … . … Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the complaint … . Harvey v Usukumah, 2025 NY Slip Op 03050, Second Dept 5-21-25

Practice Point: Here defendants’ mother’s affidavit claiming she was not served with the summons and complaint but rather found the papers on the ground outside the front door was deemed insufficient to rebut the process server’s affidavit. Therefore no hearing about the propriety of service should have been held and the motion to dismiss the complaint should have been denied.​

 

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