Practice point: The process server's affidavit of service constituted prima facie evidence
of proper service pursuant to CPLR 308(2). In support of his motion to dismiss, the defendant offered an affidavit denying service, but he failed to swear to
specific facts to rebut the statements in the process server's affidavit. As
such, no hearing was necessary to determine whether service was proper.
Student note: In any event, defendant’s motion was premature as it was made
within the initial 120-day period provided for service in CPLR 306-b.. Since
the plaintiff had the absolute statutory right to effect valid service at any
point within the 120-day period following the filing of the summons and
complaint, dismissal of the complaint prior to the expiration of that period
would have been improper.
Case: Bank of N.Y. v. Scura, NY
Slip Op 00166 (2d Dept. 2013).
Here is the decision.
Tomorrow’s issue: Piercing the corporate veil.
