Opinion
2006-1588 S C.
Decided March 7, 2008.
Appeal from an order of the District Court of Suffolk County, Third District.
PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.
(C. Steven Hackeling, J.), entered April 8, 2004. The order, insofar as appealed from, granted defendant's motion to vacate a default judgment only to the extent of permitting him to answer and held the judgment as security pending disposition of the action.
Order, insofar as appealed from, reversed without costs, defendant's motion granted, default judgment vacated and complaint dismissed.
In this action to recover the balance due under a credit agreement, a traverse hearing was held. The only evidence offered by plaintiff to establish that defendant was served was the process server's affidavit of service. The process server was not called to testify because he was unavailable, out of the state and not likely to return. Assuming that the affidavit was properly admitted at the traverse hearing ( see CPLR 4531), defendant's testimony effectively rebutted the allegations contained in the affidavit of service, and plaintiff offered no further substantive evidence in reply. In view of the foregoing, plaintiff failed to establish that defendant was properly served ( Boudreau v Ivanov, 154 AD2d 638; Carlino v Cook, 126 AD2d 597). Since the court lacked jurisdiction over defendant, the judgment should have been vacated unconditionally and the action dismissed ( see Ben-Amram v Hershowitz, 14 AD3d 638).
McCabe, J.P., Tanenbaum and Molia, JJ., concur.