Practice point: Here, the affidavit of service indicating that the respondent was
served pursuant to CPLR 308(2) by delivery of the papers to a person of
suitable age and discretion was insufficient to establish,
prima facie, that the respondent was validly served pursuant to that
section. However, a second affidavit of service constituted prima facie
evidence of proper service of the summons and complaint pursuant to CPLR
308(1), and of proper service of the notice required by Real Property Actions and Proceedings Law § 1303. The respondent's bare and unsubstantiated denial of service lacked
the factual specificity and detail required to rebut the proof of proper service set forth in the affidavit..
Student note: Although a defendant's sworn denial of receipt of service generally
rebuts the presumption of proper service established by a process
server's affidavit and necessitates an evidentiary hearing, no hearing
is required where the defendant fails to swear to specific facts to
rebut the statements in the affidavit.
Case: Deutsche Bank Natl. Trust Co. v. Quinones, NY Slip Op 00959 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: Disclosure of privileged medical records.
