A process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service is insufficient to rebut the presumption. In order to warrant a hearing, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service. Here, the affidavit of service reflects that the defendant was personally served at his home and sets forth in detail a physical description of the defendant. The defendant attempted to rebut the presumption of proper service with an affidavit averring that he left a friend's house approximately 30 minutes prior to the alleged time of service, and that no one was at the defendant's home. The defendant failed to address the detailed physical description of him set forth in the affidavit of service. The Appellate Division affirmed the trial court's determination that the "defendant's assertion that there was not proper service is conclusory, self-serving and not credible." Thus, the trial court providently exercised its discretion in denying that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate the judgment of foreclosure and sale.
Wilmington Trust, NA v. Daddi, NY Slip Op 02040 (2d Dep't March 23, 2022)
