Opinion
Submitted October 27, 1999
December 6, 1999
In an action to recover damages for wrongful death, the defendants Alfredo Santorelli, Roseanne Santorelli, and Anthony Santorelli appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered December 11, 1998, which denied, without a hearing, their motion to vacate a judgment of the same court, entered September 2, 1997, upon their default in appearing and answering.
Gerald B. Lefcourt, P.C., New York, N.Y. (Sheryl E. Reich and Renato C. Stabile of counsel), for appellants.
James V. Simmonds, Yonkers, N.Y., for respondent.
SONDRA MILLER, J.P., WILLIAM C. THOMPSON, GABRIEL M. KRAUSMAN, ANITA R. FLORIO, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on the issue of whether proper service of process was effected upon the appellants in accordance herewith.
As a general rule, a sworn denial of service by a defendant rebuts the process server's affidavit of service, and the plaintiff is required to establish personal jurisdiction over the defendant by a preponderance of the evidence adduced at a hearing (see, Bank of Am. Natl. Trust Sav. Assn. v. Herrick, 233 A.D.2d 351 ; Long Is. Sav. Bank v. Meliso, 229 A.D.2d 478; Wern v. D'Alessandro, 219 A.D.2d 646 ). Here, the appellants' sworn denials of service were sufficient to render the affidavits of service inconclusive, creating factual issues that must be resolved at a hearing (see, Jannace v. Nelson, L.P., 256 A.D.2d 285), at the conclusion of which the court should determine the motion to vacate the judgment.