| Goralski v Nadzan |
| 2011 NY Slip Op 08122 [89 AD3d 801] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Michael Goralski, Respondent, v John C. Nadzan, Jr.,Appellant. |
—[*1] Davis & Ferber, LLP, Islandia, N.Y. (Ian M. Sack of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Spinner, J.), dated October 12, 2010, which denied hismotion to vacate a judgment of the same court entered July 6, 2009, upon his default in appearingor answering the complaint, and to dismiss the complaint for lack of proper service upon him.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Suffolk County, for a hearing to determine whether the defendant was properlyserved and, thereafter, for a new determination of his motion to vacate the judgment entered uponhis default in appearing or answering the complaint and to dismiss the complaint for lack ofproper service upon him.
The burden of proving that personal jurisdiction has been acquired over a defendant in anaction rests with the plaintiff (seeAnderson v GHI Auto Serv., Inc., 45 AD3d 512, 512-513 [2007]; Kearney vNeurosurgeons of N.Y., 31 AD3d 390 [2006]; Bankers Trust Co. of Cal. v Tsoukas,303 AD2d 343 [2003]). Ordinarily, a process server's affidavit of service establishes a primafacie case as to the method of service and, therefore, gives rise to a presumption of proper service(see Wells Fargo Bank, NA vChaplin, 65 AD3d 588, 589 [2009]; Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340[2004]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344). However, where there isa sworn denial that a defendant was served with process, the affidavit of service is rebutted, andthe plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (seeWells Fargo Bank, [*2]NA v Chaplin, 65 AD3d at 589; Mortgage Access Corp. v Webb, 11AD3d 592, 593 [2004]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344).
The defendant's sworn, detailed, and specific statements that he no longer resided at theaddress recited in the process server's affidavit of service when service of the summons andcomplaint was purportedly made pursuant to CPLR 308 (2) were sufficient to rebut the processserver's affidavit of service. In opposition, the plaintiff failed to submit documentary evidencesufficient to establish that the address where the process was served was the defendant's dwellingplace, usual place of abode, or last known residence. Under these circumstances, the defendant isentitled to a hearing on the issue of whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d894 [2008]; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co.of Cal. v Tsoukas, 303 AD2d at 344). Thus, we remit the matter to the Supreme Court,Suffolk County, for a hearing to determine whether the defendant was properly served and,thereafter, for a new determination of his motion to vacate his default and to dismiss thecomplaint for lack of proper service on him. Mastro, J.P., Balkin, Chambers and Sgroi, JJ.,concur.