Practice point: Generally, a process server's affidavit of service establishes a
prima facie case as to the method of service and, therefore, gives rise
to a presumption of proper service. Here, however, the defendant's sworn statement that he no longer resided at the address recited in the process
server's affidavit where service was allegedly effected pursuant to CPLR
308(2), and of a police accident report submitted by him which recited his address as different from that where service was allegedly
effected, were sufficient to rebut this presumption of proper service. The defendant was entitled to a hearing on
the issue of whether personal jurisdiction was acquired over him before a determination was made on his motion to dismiss.
Student note: The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff.
Case: Lazarre v. Davis, NY Slip Op 05990 (2d Dept. 2013)
Here is the decision.
Monday's issue: Motion to vacate a conditional order.
