| Lazarre v Davis |
| 2013 NY Slip Op 05990 [109 AD3d 968] |
| September 25, 2013 |
| Appellate Division, Second Department |
| Emmanuella Lazarre, Respondent, v Vivia Davis etal., Respondents, and David Jean Tassy, Appellant. |
—[*1] Georgaklis & Mallas, PLCC, Brooklyn, N.Y. (George Batchvarov of counsel), forplaintiff-respondent.
In an action to recover damages for personal injuries, the defendant David JeanTassy appeals, as limited by his brief, from so much of an order of the Supreme Court,Kings County (Bunyan, J.), dated June 6, 2012, as denied his motion pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, somuch of the order as, in effect, denied, as academic, the plaintiff's cross motion pursuantto CPLR 306-b to extend her time to serve the summons and complaint on the defendantDavid Jean Tassy is vacated, and the matter is remitted to the Supreme Court, KingsCounty, for a hearing to determine whether the defendant David Jean Tassy was properlyserved with process, and thereafter for a new determination of his motion pursuant toCPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against him for lack ofpersonal jurisdiction, and, if warranted, a determination on the merits of the plaintiff'scross motion pursuant to CPLR 306-b to extend her time to serve the summons andcomplaint on the defendant David Jean Tassy.
" 'The burden of proving that personal jurisdiction has been acquired over adefendant in an action rests with the plaintiff' " (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897[2013], quoting Wells FargoBank, NA v Chaplin, 65 AD3d 588, 589 [2009]). "Generally, a process server'saffidavit of service establishes a prima facie case as to the method of service and,therefore, gives rise to a presumption of proper service" (Washington Mut. Bank v Holt,71 AD3d 670, 670 [2010]; see Wells Fargo Bank, NA v Chaplin, 65 AD3dat 589; Household Fin. RealtyCorp. of N.Y. v Brown, 13 AD3d 340, 341 [2004]). Here, however, the swornstatement of the defendant David Jean Tassy that he no longer resided at the addressrecited in the process server's affidavit where service was allegedly effected pursuant toCPLR 308 (2), and of a police accident report submitted by him which recited an addressfor Tassy different from that where service was allegedly effected, were sufficient torebut this presumption of proper service (see Washington Mut. Bank v Holt, 71AD3d at 670-671; Wells Fargo Bank, NA v Chaplin, 65 AD3d at 589; Zion v Peters, 50 AD3d894, 894-895 [2008]). In light of this evidence, Tassy was entitled to a hearing onthe issue of whether personal jurisdiction was acquired [*2]over him before a determination was made on his motion todismiss the complaint insofar as asserted against him (see Wells Fargo Bank, NA vChaplin, 65 AD3d at 589-590; Zion v Peters, 50 AD3d at 894-895; Mortgage Access Corp. vWebb, 11 AD3d 592, 593 [2004]). Thus, we remit the matter to the SupremeCourt, Kings County, for a hearing to determine whether Tassy was properly served withprocess, and thereafter for a new determination of his motion pursuant to CPLR 3211 (a)(8) to dismiss the complaint insofar as asserted against him for lack of personaljurisdiction.
Additionally, in light of the above determination, the plaintiff's cross motionpursuant to CPLR 306-b to extend her time to serve the summons and complaint onTassy is no longer academic. Accordingly, so much of the order as, in effect, denied thecross motion as academic is vacated, and, upon remittitur, the Supreme Court shall, ifwarranted, make a determination on the merits of the plaintiff's cross motion. Rivera,J.P., Dickerson, Leventhal and Lott, JJ., concur.