An affidavit of service constitutes prima facie evidence of proper service, and the mere denial of receipt of service is insufficient to rebut the presumption of proper service created by a properly-executed affidavit of service. Here, the Appellate Division affirmed the Supreme Court's finding of jurisdiction over the defendant by proper service of the summons and complaint. In the defendant's affidavit, she denied that she was personally served because she had temporarily moved to a family member's home. However, there is no documentary evidence to support her claim that she was never in her "dwelling place or usual place of abode," pursuant to CPLR 308[2], at the time service allegedly was effected.
The defendant's argument that she is shorter than the person described in the affidavit of service is insufficient to rebut the presumption of proper service, and she does not dispute that the other descriptions set forth in the affidavit of service, such as her age, weight, hair color, and skin color, match her description. Further, the defendant concedes that both her husband and a female tenant resided at the address where service was effected, and she does not dispute that they were of suitable age and discretion to have accepted service, pursuant to CPLR 308[2].
Ocwen Loan Servicing, LLC v. Ali, NY Slip Op 01292 (1st Dep't February 25, 2020)
Here is the decision.
