A process server's affidavit constitutes a prima facie showing of proper service. However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing. Here, the affidavit reflects that the defendant was served pursuant to CPLR 308(2) by delivery of the summons and complaint to a person of suitable age and discretion at the mortgaged premises, followed by the required mailing to the address of the premises. The affidavit sets forth a detailed description of the person of suitable age and discretion, and states that the person represented to the process server that the premises was the defendant's "dwelling house." The defendant rebutted the presumption of valid service with an affidavit in which he averred that the premises was not his dwelling house or usual place of abode, and that his residence was located at a different specified address. He further averred that he had no knowledge of anyone being served on his behalf, and that he had not received a copy of the summons and complaint. Under these circumstances, a hearing on the issue of whether the defendant was properly served is warranted.
Bank of N.Y. v. Dutan, NY Slip Op 06668 (2d Dep't December 1, 2021)
