Practice point: The defense otherwise afforded by CPLR 317 is unavailable where the defendant's cursory denials fail to rebut the presumption of notice of the action created by the emails and proof of mailings submitted by the plaintiff. Where the defendant fails to raise an issue of fact as to service, vacatur for lack of jurisdiction under CPLR 5015(a)(4) will be denied. Where the defendant's only excuse is lack of service, and there is no issue of fact as to service, vacatur for excusable default under CPLR 5015(a)(1) will be denied.
Student note: A process server's affidavit constitutes prima facie evidence of proper service.
Thomas v. Karen's Body Beautiful LLC, NY Slip Op 00241 (1st Dep't January 15, 209)
Here is the decision.
