Opinion
Index No. CV-88465-07/BX
04-26-2022
FIRST AMERICAN INVESTMENT COMPANY, LLC, a/a/o Citibank, Plaintiff, v. Orlando FABIAN, Defendant.
The parties appeared on April 14, 2022 for a traverse hearing pursuant to the Court's decision and order dated October 22, 2021 (Gomez, J.) (the "October Decision"). Upon the evidence and testimony adduced at the hearing, the decision and order of the Court is as follows:
Defendant's traverse is granted, the judgment vacated, and this action dismissed.
Before the commencement of testimony, the Court heard two applications by the parties: plaintiff's application to cancel the instant traverse hearing in light of the subject process server's death, and defendant's application to exclude the now-deceased process server's affidavit of service that was the impetus of the instant traverse hearing. The Court denied both applications on the record, and explains both decisions more fully herein in addition to addressing the merits of defendant's instant motion following the traverse hearing.
Plaintiff's Application to Cancel the Traverse Hearing
By its counsel's supplemental affirmation dated January 13, 2022, plaintiff asserted that "a traverse hearing can no longer be held," because the process server whose service was being challenged — William Morrison — died on January 16, 2017. Plaintiff's Supplemental Aff., ¶ 5. Instead of proceeding to a traverse hearing, plaintiff posits that Mr. Morrison's 2017 death renders his December 6, 2007 affidavit of service conclusive prima facie evidence of proper service of the summons and complaint in this action. As plaintiff correctly notes, CPLR 4537 states that "[a]n affidavit by a person who served, posted or affixed a notice, showing such service, posting or affixing is prima facie evidence of the service, posting or affixing if the affiant is dead, mentally ill or cannot be compelled with due diligence to attend at the trial." The parties do not dispute that Mr. Morrison is dead, consequently his affidavit is prima facie evidence of service pursuant to CPLR 4537. See, Cobble Hillbillies, LLC v. Interior Design , 4 Misc 3d 987, 989 (Civ. Ct., Kings Co. 2004) (discussing impact of CPLR 4537 upon admissibility of process server's affidavit). Indeed, the court noted the prima facie effect of a process server's affidavit pursuant to CPLR 308(2) in ordering the instant traverse hearing. October Decision, at 3. However, a process server's death does not, by itself, preclude a traverse hearing. However, such prima facie evidence of service may be rebutted. Smith v Reid , 134 NY 568, 571 (1892) (collecting cases and finding that even though a "recital [of service] was prima facie evidence of the truth of that fact it was not conclusive, and the defendant was at liberty to show that service of the summons was not in fact made.") (italics in original). Here, the Court has previously found a basis to question the alleged service of the summons and complaint by Mr. Morrison. October Decision, at 3-4. Those questions are not washed away by the fact that Mr. Morrison has died, and the Court declines to revisit the basis to ask those questions. See, e.g., Capital Resources Corp. v. Auguste , 266 AD2d 330, 330 (2d Dept. 1999) (affirming denial of motion to vacate following traverse hearing after process server's death). Accordingly, plaintiff's application to cancel the traverse hearing is denied.
The balance of plaintiff's supplemental affirmation is largely a reargument of plaintiff's position in opposing a traverse hearing at the outset, which the Court considered and rejected in the October Decision. Plaintiff did not seek explicitly seek reargument as required by CPLR 2221, and the interests of justice do not support construing plaintiff's supplemental affirmation as a request for leave to reargue. Citibank, N.A. v. Torres , Index No. CV-008313-20/BX, slip op., at 3 n. 3 (Civ. Ct., Bronx Co. Feb. 25, 2022) (declining to construe re-submitted motion for default as a motion to reargue prior denial). See also, Matter of New York City Civilian Complaint Rev. Bd. v. Office of the Comptroller , 2016 NY Slip Op 30422(U), *2 (Sup. Ct., New York Co. 2016) (citing cases and noting that "a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided but to point out controlling principles of law or fact that the court may have overlooked").
Defendant's Application to Exclude the Affidavit of Service
Similarly, defendant's application to exclude Mr. Morrison's affidavit of service from evidence is denied as well. Again, the parties do not dispute that Mr. Morrison is dead. CPLR 4537 specifically addresses what to do with an affidavit of service by a now-dead process server however. "Where, as here, the process server is deceased at the time of the motion, his affidavit of service, if not conclusory and devoid of sufficient detail, shall be admitted in evidence as prima facie proof of service." J. Kings Food Serv. Profls., Inc. v. Ocean Garden Cafe, Inc. , 7 Misc 3d 129(A), *2 (App. Term, 2d Dept. 2005). The issue before the Court is not whether Mr. Morrison's affidavit is conclusory or lacking in sufficient detail, but whether that detail is credible. That defendant's moving papers may conflict with Mr. Morrison's affidavit of service creates a question of fact and credibility that goes to the weight of the affidavit in this circumstance, not its admissibility. People v. La Brake , 51 AD2d 609, 610 (3d Dept. 1976). Accordingly, defendant's application to exclude Mr. Morrison's affidavit is denied.
Defendant's Traverse Challenge
Ordinarily, "[t]he burden of proving in personam jurisdiction is on the party asserting it." Bernardo v. Barrett , 87 AD2d 832, 833 (2d Dept.), affd. for reasons stated below , 57 NY2d 1006 (1982). As a consequence, once a traverse hearing is ordered, the process server's appearance and testimony is typically essential. However, when the process server has died before a traverse hearing can be held, but executed a facially-sufficient affidavit of service, the remedy is to shift the burden in a traverse hearing to the defendant. See, e.g., Denning v. Lettenty , 48 Misc 2d 185, 186-187 (Sup. Ct., New York Co. 1965) (rejecting referee's report to vacate judgment after traverse hearing held after process server's death). Doing so preserves defendants’ rights to challenge improper service while also protecting plaintiffs from defendants taking advantage of a process server's death to vacate otherwise valid judgments. This is particularly important where, as here, the service at issue occurred beyond the record-retention periods required for process servers and their employers in New York, limiting the availability of corroborating information and creating a unique situation where burden-shifting is appropriate. Cf. Chaudry Const. Corp. v. James G. Kalpakis & Assocs. , 60 AD3d 544, 545 (1st Dept. 2009) (limiting, but not foreclosing, burden-shifting in traverse hearings). Applying this burden-shifting to the instant matter, the Court finds that defendant has met his burden in challenging service.
Defendant testified on his own behalf, as did his co-resident mother, and both were cross-examined by plaintiff. Both testified that no one matching the description of the individual allegedly receiving service resided with them at defendant's residence at the alleged time of service, that neither of them were home at the alleged time of service, and that they did not receive a copy of the summons and complaint in the mail. They denied any difficulties with receiving other mail at the relevant time. Defendant, who was the only male living in his residence at the relevant time, testified credibly that his physical appearance was markedly different than the individual allegedly served. Plaintiff did not call witnesses of its own, and relied upon the affidavit of service and its averments in the instant motion papers. On balance, the evidence before the Court favors defendant. Having sustained defendant's traverse, the Court does not have personal jurisdiction over defendant, necessitating dismissal. See, 2437 Valentine Assoc. LLC v. Valverde , 70 Misc 3d 1216(A), *10-11 (Civ. Ct., Bronx Co. 2021) (collecting cases and dismissing action after traverse hearing). Accordingly, it is
ORDERED that defendant's traverse is granted, and the judgment against defendant is vacated; and it is further
ORDERED that any levies, garnishments or other enforcement of the judgment against defendant are vacated; and it is further
ORDERED that any funds collected in satisfaction of the judgment against defendant not already returned to defendant be returned to defendant forthwith; and it is further
ORDERED that this action is dismissed for lack of personal jurisdiction over defendant; and it is further
ORDERED that plaintiff serve a copy of this Order and written notice of entry upon defendant within 30 days of the date of this Order.
This constitutes the Decision and Order of the Court.