Practice point: Defendant's affidavit denying
receipt of process, and his averment that he was at his place of
employment in New York County at the time of the alleged service, were
sufficient to rebut the presumption of proper service, necessitating a hearing.
Student note: A process server's affidavit of service establishes, prima facie, that defendant was properly served
pursuant to CPLR 308(1). However, where, as here, the presumption is rebutted, a hearing is required.
Case: American Home Mtge. Servicing, Inc. v. Gbede, NY Slip Op 03309 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: A missing witness charge.
