| City of New York v Miller |
| 2010 NY Slip Op 03059 [72 AD3d 726] |
| April 13, 2010 |
| Appellate Division, Second Department |
| City of New York et al., Respondents, v Darren Miller etal., Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg andDeborah A. Brenner of counsel), for respondents.
In an action, inter alia, to impose penalties for illegal dumping, the defendants appeal from(1) an order of the Supreme Court, Kings County (Rothenberg, J.), dated June 27, 2008, whichdenied their motion, inter alia, to vacate a temporary restraining order dated April 10, 2008, anda preliminary injunction dated April 11, 2008, entered on their default, based on lack of personaljurisdiction, and (2) an order of the same court dated November 21, 2008, which denied theirmotion to dismiss the complaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction.
Ordered that the orders are affirmed, with one bill of costs.
The Supreme Court properly denied, without a hearing, the defendants' motion to dismiss thecomplaint pursuant to CPLR 3211 (a) (8) for lack of personal jurisdiction. The affidavits of theprocess servers constituted prima facie evidence of proper service pursuant to CPLR 308 (4) (see Scarano v Scarano, 63 AD3d716, 716 [2009]; Mortgage Elec.Registration Sys., Inc. v Schotter, 50 AD3d 983, 983 [2008]; 425 E. 26th St. Owners Corp. vBeaton, 50 AD3d 845, 846 [2008]; Simonds v Grobman, 277 AD2d 369, 370[2000]). Although a defendant's sworn denial of receipt of service generally rebuts thepresumption of proper service established by a process server's affidavit and necessitates anevidentiary hearing, no hearing is required where the defendant fails to swear to specific facts torebut the statements in the process server's affidavits (see Scarano v Scarano, 63 AD3dat 716; Simonds v Grobman, 277 AD2d at 370). Here, the defendants' bare denial ofservice was insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(4) created by the process servers' affidavits and to necessitate a traverse hearing (seeScarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. vSchotter, 50 AD3d at 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d at 846;Simonds v Grobman, 277 AD2d at 370).
The Supreme Court also properly denied the defendants' motion, inter alia, to vacate atemporary restraining order and preliminary injunction based on lack of proper service of theorder to show cause. "The method of service provided for in an order to show cause isjurisdictional in nature and must be strictly complied with" (Matter of El Greco Socy. of Visual Arts, Inc. v Diamantidis, 47 AD3d929, 929 [2008]; see Matter of DelVillar v Vekiarelis, 59 AD3d 642, 643 [2009]; Matter [*2]of Master v Pohanka, 43AD3d 478, 480 [2007], affd 10 NY3d 620 [2008]; Matter of Hennessey v DiCarlo, 21AD3d 505, 505 [2005]). Here, the express terms of the order to show cause required theplaintiffs to serve the order to show cause and other papers on the defendants as well as theirattorneys. However, while it is undisputed that attorney Vincent M. Gerardi represented thedefendants in a related but separate and independent action, and that the plaintiffs were aware ofthat action, it is also undisputed that, in the instant action, as of the time the plaintiffs wererequired to serve the order to show cause, no attorney had appeared on behalf of the defendants(see generally CPLR 320 [a]; 321 [a]). CPLR 2103 (c) expressly provides that, if a partyhas not appeared by an attorney, service shall be upon the party. Thus, notwithstanding thelanguage directing service in the order to show cause, the plaintiffs were not required to serveGerardi with the order to show cause merely because he represented the defendants in a separateand independent, if not entirely unrelated, action, where neither he nor any other attorney hadappeared on behalf of the defendants in this action (see Long v Long, 196 Misc 982, 984[1949]).
The defendants' remaining contentions are without merit. Covello, J.P., Miller, Dickersonand Belen, JJ., concur. [Prior Case History: 20 Misc 3d 1117(A), 2008 NY Slip Op51374(U).]