Forrester v Luisa

2008 NY Slip Op 05373

Decided on June 12, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 12, 2008
Mazzarelli, J.P., Catterson, Moskowitz, Acosta, JJ.
3925 20217/05






Jonathan Irons, Bronx, for appellant.
McCabe, Collins, McGeough & Fowler, LLP, Carle Place
(Patrick M. Murphy of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered May 11, 2007, which, after a traverse hearing, granted defendant Obee's motion to dismiss the complaint as against her for lack of personal jurisdiction, unanimously affirmed, without costs.

Plaintiff failed to carry his burden of demonstrating, by a preponderance of the evidence (see Persaud v Teaneck Nursing Ctr., 290 AD2d 350 [2002]), that service was properly made upon Obee, a New Jersey resident, in accordance with Vehicle and Traffic Law § 253. Any presumption raised by the affidavit of service that Obee was personally served was overcome by her testimony to the contrary, which was supported in the traverse court's finding of significant discrepancies between her physical characteristics and the description of her in the process server's affidavit of service. The testimony of plaintiff's process server failed to rebut Obee's testimony with "convincing additional details of the facts and circumstances surrounding the alleged service" (Holtzer v Stepper, 268 AD2d 372 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 12, 2008

CLERK