Practice point: Defendant moved, pursuant to CPLR 5015[a][4], to vacate his default and to dismiss the complaint insofar as asserted against him on the ground that he had not been served with copies of the summons and complaint. The Supreme Court denied the motion, finding that service of process was properly effected under CPLR 308(2). The Appelate Division reversed, and remitted.
Defendant submitted an affidavit asserting that he had never lived at the address at which the substituted service was allegedly effected, thereby denying that he was served at his "actual . . . dwelling place or usual place of abode," as required by CPLR 308[2]).
In opposition, plaintiff conceded that defendant had resided at multiple residences during the six years prior to the commencement of the action and so its submissions revealed a question of fact with respect to whether the address where service was allegedly effected was defendant's actual dwelling place or usual place of abode. As the submitted evidence was not dispositive, there should have been a hearing.
Student note: A process server's affidavit constitutes prima facie evidence of proper service, pursuant to CPLR 308(2)
Case: Central Mtge. Co. v. Ward, NY Slip Op 02926 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Summary judgment while a stay is pending.
