| Poree v Bynum |
| 2008 NY Slip Op 08410 [56 AD3d 261] |
| November 6, 2008 |
| Appellate Division, First Department |
| Ernest Poree, Appellant, v Gregory Bynum,Respondent. |
—[*1] Gregory Bynum, Jr., respondent pro se.
Judgment, Supreme Court, Bronx County (Nelson S. Roman, J.), entered November 14,2007, dismissing the complaint for lack of personal jurisdiction, unanimously reversed, on thelaw and the facts, without costs, and the complaint reinstated. Appeal from order, same court andJustice, entered on or about October 25, 2007, which, to the extent appealable, denied plaintiff'smotion to renew his prior motion for default, unanimously dismissed, without costs, as subsumedin the appeal from the judgment.
The traverse hearing was warranted where the parties' conflicting affidavits disputed whetherservice had properly been effected (see Anello v Barry, 149 AD2d 640, 641 [1989]).Plaintiff submitted an affidavit stating that substituted service had been made on defendant'smother at the address confirmed as defendant's through records at the Department of MotorVehicles. Defendant denied that he lived at that address, even though it was listed as such on hisdriver's license, and he submitted an affidavit from his mother denying that she received processon his behalf. Nevertheless, plaintiff did demonstrate, by a preponderance of the evidence, thatproper service was made (see Cadle Co.v Nunez, 43 AD3d 653 [2007]). The process server testified at the hearing that hepersonally served defendant's mother with the summons and complaint at the officially listedaddress, and then mailed a copy to the same address. Defendant's statements that he did not liveat that address, and that neither he nor his mother was ever served with papers, were notcorroborated by any evidence. His mother's affidavit acknowledged that she spoke to the processserver but denied that she accepted process on defendant's behalf; however, defendant failed tocall his mother to testify at the hearing. In light of defendant's vague and uncorroboratedstatements about his address at the time of service, the process server's failure to produce hislogbook at the hearing, which was assertedly destroyed in a car accident, did not warrant arejection of the latter's testimony. Plaintiff's motion for a default judgment was properly denied inlight of defendant's affidavit raising a potentially meritorious defense (see e.g. Spira v New York City Tr.Auth., 49 AD3d 478 [2008]). Concur—Andrias, J.P., Saxe, Gonzalez, Cattersonand Acosta, JJ.