| Fuentes v Espinal |
| 2017 NY Slip Op 05938 [153 AD3d 500] |
| August 2, 2017 |
| Appellate Division, Second Department |
[*1]
| Joseph Fuentes, Appellant, v Byron Espinal,Respondent. |
Baker Greenspan & Bernstein, Bellmore, NY (Patrick Garvey of counsel), forappellant.
Gamaliel B. Delgado, New York, NY, for respondent.
In an action, inter alia, to recover damages for assault, the plaintiff appeals from an order ofthe Supreme Court, Queens County (D. Hart, J.), entered March 31, 2016, which granted thedefendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (8) and 306-b.
Ordered that the order is reversed, on the law, with costs, and the matter is remitted to theSupreme Court, Queens County, for a hearing to determine whether personal jurisdiction over thedefendant was obtained in the action, and for a new determination thereafter of the defendant'smotion to dismiss the complaint pursuant to CPLR 3211 (a) (8) and 306-b.
The Supreme Court erred in granting the defendant's motion to dismiss the complaintpursuant to CPLR 3211 (a) (8) and 306-b without conducting a hearing. "CPLR 308 (2)authorizes service, inter alia, by delivery of the summons and complaint within the state to aperson of suitable age and discretion at the defendant's dwelling place and mailing the summonsto the defendant's last known residence" (Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d343, 343-344 [2003]; see Citibank, N.A.v Balsamo, 144 AD3d 964, 964 [2016]; Frankel v Schilling, 149 AD2d 657, 659[1989]). "Ordinarily, a process server's affidavit of service constitutes prima facie evidence thatthe defendant was validly served" (U.S.Bank, N.A. v Peralta, 142 AD3d 988, 988 [2016]; see Citibank, N.A. v Balsamo,144 AD3d at 964). "However, when a defendant submits a sworn denial of receipt of servicecontaining specific facts to refute the statements in the affidavit of the process server, the primafacie showing is rebutted and the plaintiff must establish personal jurisdiction by apreponderance of the evidence at a hearing" (U.S. Bank, N.A. v Peralta, 142 AD3d at988-989; see Citibank, N.A. v Balsamo, 144 AD3d at 964; Frankel v Schilling,149 AD2d at 659).
Here, the plaintiff's affidavit of service constituted prima facie proof of proper servicepursuant to CPLR 308 (2) upon the defendant (see Citibank, N.A. v Balsamo, 144 AD3dat 964). The process server averred, inter alia, that on May 23, 2015, at 7:38 p.m., he deliveredthe process papers at the defendant's residence to "Jane Doe," who was identified as a"co-tenant," a person of suitable age and discretion, and whose appearance was described asfemale, brown skin, black hair, aged 17 to 21 years old, 100 to 130 pounds, and 5'4" to 5'8" inheight.
The defendant rebutted the process server's affidavit through his specific averments [*2]that, at the time of the purported service, he did not reside withanyone with the above description. The defendant averred that he lived with his 91-year-oldgrandmother and his 28-year-old sister. The defendant's description of his sister differedmaterially from the description of the unidentified woman identified by the process server in thathis sister had red hair, was 28 years old, and weighed "well in excess of 130 lbs" at the time ofthe purported service (see Frankel v Schilling, 149 AD2d at 659). Moreover, thedefendant averred that his sister was temporarily residing with his parents at a different addressbecause she had recently given birth. Under these circumstances, the Supreme Court should haveconducted a hearing to determine whether the defendant was properly served pursuant to CPLR308 (2).
Accordingly, we remit the matter to the Supreme Court, Queens County, for a hearing on theissue of whether the defendant was properly served with process in accordance with CPLR 308(2), and a new determination thereafter of the defendant's motion to dismiss the complaintpursuant to CPLR 3211 (a) (8) and 306-b. Eng, P.J., Leventhal, Sgroi and Maltese, JJ.,concur.