| Edwards, Angell, Palmer & Dodge, LLP v Gerschman |
| 2014 NY Slip Op 02559 [116 AD3d 824] |
| April 16, 2014 |
| Appellate Division, Second Department |
| Edwards, Angell, Palmer & Dodge, LLP,Respondent, v Thomas Gerschman, Appellant. |
—[*1]
In an action, inter alia, to recover fees for legal services rendered, the defendantappeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated March 28,2013, which denied, as academic, his motion pursuant to CPLR 3211 (a) (8) to dismissthe complaint for lack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Suffolk County, for a hearing to determine whether the defendantwas properly served with copies of the summons and complaint pursuant to CPLR 308(1), and thereafter a new determination of the defendant's motion pursuant to CPLR 3211(a) (8) to dismiss the complaint for lack of personal jurisdiction.
The plaintiff law firm commenced this action, inter alia, to recover fees for legalservices rendered. According to an affidavit of service, a process server personally servedthe defendant at an address in Sagaponack on October 23, 2012. By notice of motiondated February 4, 2013, the defendant moved pursuant to CPLR 3211 (a) (8) to dismissthe complaint for lack of personal jurisdiction. In the order appealed from, the SupremeCourt denied the defendant's motion as academic, noting that the parties, on February 3,2013, entered into a preliminary conference order. The defendant appeals.
"A process server's affidavit of service constitutes prima facie evidence of properservice" (Scarano vScarano, 63 AD3d 716, 716 [2009]). "Although a defendant's sworn denial ofreceipt of service generally rebuts the presumption of proper service established by theprocess server's affidavit and necessitates an evidentiary hearing (see Skyline Agencyv Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where thedefendant fails to swear to 'specific facts to rebut the statements in the process server'saffidavits' " (Scarano v Scarano, 63 AD3d at 716, quoting Simonds vGrobman, 277 AD2d 369, 370 [2000]; see Bank of N.Y. v Samuels, 107 AD3d 653, 653 [2013]).
Here, although the process server's affidavit constituted prima facie evidence ofproper service, the defendant's sworn claims that his lease for the subject premisesexpired in May 2007, and was not extended, that he vacated the premises inapproximately May 2007, and that he did not reside at the subject premises at the time ofalleged service of copies of the summons and complaint, along with his submission ofdocumentary and other evidence supporting those claims, was sufficient to rebut theprima facie showing, and to necessitate a hearing (see Dime Sav. Bank of [*2]Williamsburg v 146 Ross Realty, LLC, 106 AD3d863, 864 [2013]; ToyotaMotor Credit Corp. v Lam, 93 AD3d 713, 714 [2012]; U.S. Bank, N.A. v Arias, 85AD3d 1014, 1015-1016 [2011]). Further, to the extent that the Supreme Courtdenied the defendant's motion based on its conclusion that he waived his defensepredicated on lack of personal jurisdiction, this was error. Since the defendant bothasserted this affirmative defense in his answer and moved pursuant to CPLR 3211 (a) (8)to dismiss the complaint on this ground, his participation in discovery did not result inthe waiver of this defense (see CPLR 320 [b]; Gager v White, 53 NY2d475, 487-488 [1981]; Williams v Uptown Collision, 243 AD2d 467, 467 [1997];Beris v Miller, 128 AD2d 822, 823 [1987]; Calloway v National Servs.Indus., 93 AD2d 734, 734-735 [1983], affd 60 NY2d 906 [1983]; see also Matter of Maya Assur. Co.v Hussain, 87 AD3d 536, 536 [2011]).
Accordingly, we remit the matter to the Supreme Court, Suffolk County, for ahearing to determine whether the defendant was properly served with the summons andcomplaint pursuant to CPLR 308 (1), and thereafter a new determination of thedefendant's motion. Skelos, J.P., Dickerson, Leventhal and Hall, JJ., concur.