Rosemark Contrs., Inc. v Ness

2017 NY Slip Op 03206 [149 AD3d 1115]

April 26, 2017

Appellate Division, Second Department

As corrected through Wednesday, May 31, 2017

[*1]

Rosemark Contractors, Inc., Respondent, v Leslie H.Ness et al., Appellants, et al., Defendant.

Max Markus Katz, P.C., New York, NY (Anil K. Prabhu of counsel), for appellants.

In an action, inter alia, to recover damages for breach of contract, the defendants Leslie H.Ness and Joyce Ness appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Silber, J.), dated November 19, 2015, as denied their motion pursuant toCPLR 3211 (a) (8) to dismiss the amended complaint insofar as asserted against them for lack ofpersonal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thematter is remitted to the Supreme Court, Kings County, for a hearing to determine whether thedefendants Leslie H. Ness and Joyce Ness were served with copies of the summons and amendedcomplaint pursuant to CPLR 308 (1), and thereafter, a new determination of their motion.

"A process server's affidavit of service ordinarily constitutes prima facie evidence of properservice" (Deutsche Bank Natl. Trust Co.v Pestano, 71 AD3d 1074, 1074 [2010]; see FV-1, Inc. v Reid, 138 AD3d 922, 923 [2016]; Mortgage Elec. Registration Sys., Inc. vLosco, 125 AD3d 733, 733 [2015]). Bare and unsubstantiated denials are insufficient torebut the presumption of service (seeWachovia Bank, N.A. v Greenberg, 138 AD3d 984, 985 [2016]; Wells Fargo Bank, N.A. v Christie, 83AD3d 824, 825 [2011]). However, a sworn denial of service containing specific factsgenerally rebuts the presumption of proper service established by the affidavit of service andnecessitates a hearing (see Wachovia Bank, N.A. v Greenberg, 138 AD3d at 985;FV-1, Inc. v Reid, 138 AD3d at 923; Deutsche Bank Natl. Trust Co. v DaCosta, 97 AD3d 630, 631[2012]). If an issue regarding service turns upon a question of credibility, a hearing should beheld to render a determination on this issue (see FV-1, Inc. v Reid, 138 AD3d at 924; Gray v Giannikios, 90 AD3d 836,837 [2011]).

Here, the affidavits of service of the plaintiff's process server established, prima facie, thatthe defendants Leslie H. Ness and Joyce Ness (hereinafter together the appellants) were properlyserved pursuant to CPLR 308 (1) with the summons and amended complaint. However, theappellants' affirmations submitted in support of their motion pursuant to CPLR 3211 (a) (8) todismiss the amended complaint insofar as asserted against them rebutted that presumption. Intheir affirmations, the appellants denied being served with the summons and amended complaintby the process server and averred that they were at a function at their synagogue, which started anhour before service was purportedly made and ended 11/2 hours later. Further, theysubmitted an [*2]affirmation from their rabbi, who also statedthat the appellants were present at the synagogue during the time of the purported service andprovided a copy of the invitation for the event.

Therefore, the Supreme Court should have directed a hearing to determine whether theappellants were properly served with process (see American Home Mtge. Servicing, Inc. v Gbede, 127 AD3d1004, 1005 [2015]). Accordingly, we remit the matter to the Supreme Court, Kings County,for a hearing to determine whether the appellants were properly served with process pursuant toCPLR 308 (1), and thereafter, a new determination of the appellants' motion. Balkin, J.P., Austin,LaSalle and Brathwaite Nelson, JJ., concur.