Friday, August 17, 2018

CONTESTING SUBSTITUTED SERVICE



US Bank, N.A. v Daskal, 2018 NY Slip Op 05792, Decided on August 15, 2018, Appellate Division, Second Department:

"Schwartz's contention that he was never properly served with process is without merit. "A process server's affidavit of service gives rise to a presumption of proper service" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776). "A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service" (id. at 776-777; see HSBC Bank USA v Whitter, 159 AD3d 942). "If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary" (Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777).

The process server averred in his affidavit of service that on July 14, 2008, at the subject premises, he served the summons and complaint on Schwartz by delivering a copy thereof to a person of suitable age and discretion, namely, "family member" Bracha Rosenbaum, and that on July 16, 2008, he mailed copies of the documents to Schwartz at the same address. These statements in the affidavit of service give rise to a presumption that Schwartz was properly served with process (see CPLR 308[2]).

Although Schwartz denied ever having resided at the subject premises, he failed to support his assertion (see U.S. Bank, N.A. v Tauber, 140 AD3d 1154, 1155). Moreover, he did not specifically deny that Rosenbaum was a family member and a person of suitable age and discretion (see HSBC Bank USA v Whitter, 159 AD3d 942). Accordingly, Schwartz failed to rebut the presumption of proper service (see Bank of N.Y. v Espejo, 92 AD3d 707; 96 Pierrepont v Mauro, 304 AD2d 631)."

No comments:

Post a Comment