| Gray v Giannikios |
| 2011 NY Slip Op 09272 [90 AD3d 836] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Scott Gray et al., Appellants, v Michael Giannikios et al.,Respondents, et al., Defendant. |
—[*1] Mendolia & Stenz (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [Donald S.Neumann, Jr., and Matthew K. Arad], of counsel), for respondents.
In an action to recover damages for personal injuries and injury to property, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County(Rosengarten, J.), entered October 12, 2010, as granted the motion of the defendants MichaelGiannikios and Ekaterini Zoumberakis pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against them for lack of personal jurisdiction.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion which was to dismiss the complaint insofar as asserted against thedefendant Ekaterini Zoumberakis for lack of personal jurisdiction; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements, and the matter is remitted tothe Supreme Court, Queens County, for a hearing on, and a new determination of, that branch ofthe motion which was to dismiss the complaint insofar as asserted against the defendant EkateriniZoumberakis for lack of personal jurisdiction.
The summons and complaint purportedly were served upon the defendants MichaelGiannikios and Ekaterini Zoumberakis (hereinafter together the respondents) by the "nail andmail" method pursuant to CPLR 308 (4). However, the record demonstrates that the service wasdeficient because the plaintiffs failed "to show the existence of even a factual question as towhether the process server exercised the due diligence necessary to be permitted to servesomeone under CPLR 308 (4)" (Levitonv Unger, 56 AD3d 731, 732 [2008]; see Schwarz v Margie, 62 AD3d 780, 781 [2009]). Since the proofof due diligence was insufficient as a matter of law, the Supreme Court properly granted thatbranch of the respondents' motion which was to dismiss the complaint insofar as asserted againstGiannikios (see Leviton v Unger, 56 AD3d at 732; Estate of Waterman v Jones, 46 AD3d 63, 66-67 [2007]; County of Nassau v Yohannan, 34AD3d 620, 621 [2006]).
However, the Supreme Court erred in granting that branch of the motion which was todismiss the complaint insofar as asserted against Zoumberakis. Zoumberakis purportedly wasre-served pursuant to CPLR 308 (1). Where a defendant submits a sworn denial of receipt ofprocess containing specific facts to rebut the statements in the process server's affidavit, thepresumption of [*2]proper service is rebutted and an evidentiaryhearing is required (see Matter of Davisv Davis, 84 AD3d 1080, 1081 [2011]; Wells Fargo Bank, N.A. v Christie, 83 AD3d 824, 825 [2011]; Engel v Boymelgreen, 80 AD3d653, 654 [2011]). Here, whether personal delivery of the summons and complaint was madeupon Zoumberakis pursuant to CPLR 308 (1) turns upon issues of credibility, which should bedetermined only after a hearing (see Engel v Boymelgreen, 80 AD3d at 654;Micalizzi v Gomes, 204 AD2d 284, 285 [1994]). Accordingly, we remit the matter to theSupreme Court, Queens County, for a hearing, at which the plaintiffs must establish, by apreponderance of the evidence, that personal jurisdiction was acquired over Zoumberakis, and fora new determination of that branch of the motion thereafter (see Engel v Boymelgreen,80 AD3d at 655; Wells Fargo Bank, NAv Chaplin, 65 AD3d 588, 590 [2009]; Zion v Peters, 50 AD3d 894, 895 [2008]).
The respondents' remaining contention is without merit (see Matter of Tagliaferri vWeiler, 1 NY3d 605, 606 [2004]). Mastro, A.P.J., Balkin, Chambers and Sgroi, JJ., concur.