Opinion
1073 CA 20-00212
03-19-2021
Kevin F. GARVEY, Jr., Plaintiff-Appellant, v. GLOBAL ASSET MANAGEMENT SOLUTIONS, INC., Defendant, and Jonathan J. Harrington, Defendant-Respondent.
ROACH, LENNON & BROWN, PLLC, BUFFALO (J. MICHAEL LENNON OF COUNSEL), FOR PLAINTIFF-APPELLANT. LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (BRENDAN H. LITTLE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
ROACH, LENNON & BROWN, PLLC, BUFFALO (J. MICHAEL LENNON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LIPPES MATHIAS WEXLER FRIEDMAN LLP, BUFFALO (BRENDAN H. LITTLE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this derivative action seeking, inter alia, damages arising from the conduct of Jonathan J. Harrington (defendant) regarding defendant Global Asset Management Solutions, Inc., an entity for which plaintiff and defendant served as, among other things, its only officers. After defendant failed to appear or answer, a default judgment was entered against him. Defendant thereafter moved to vacate the default judgment based upon lack of personal jurisdiction (see CPLR 5015 [a] [4] ). Supreme Court granted defendant's motion without a hearing. Plaintiff appeals.
Plaintiff initially contends that the court should have denied defendant's motion because the record established that defendant was properly served pursuant to CPLR 308 (2). We reject plaintiff's contention. That section permits personal service on a party "by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by ... mailing the summons to the person to be served at his or her last known residence" ( CPLR 308 [2] ). " ‘Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served’ " ( Cach, LLC v. Ryan , 158 A.D.3d 1193, 1194, 71 N.Y.S.3d 237 [4th Dept. 2018] ; see Alostar Bank of Commerce v. Sanoian , 153 A.D.3d 1659, 1659, 61 N.Y.S.3d 759 [4th Dept. 2017] ; Wachovia Bank, N.A. v. Greenberg , 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 [2d Dept. 2016] ). Although " ‘bare and unsubstantiated denials are insufficient to rebut the presumption of service ..., a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing’ " ( Cach, LLC , 158 A.D.3d at 1194, 71 N.Y.S.3d 237 ; see Wachovia Bank, N.A. , 138 A.D.3d at 985, 31 N.Y.S.3d 110 ; Fabian v. Mullen , 20 A.D.3d 896, 897, 797 N.Y.S.2d 338 [4th Dept. 2005] ). Here, the presumption of service was created by the affidavit of plaintiff's process server, but defendant rebutted that presumption by submitting, inter alia, his sworn affidavit in which he averred that he had never been personally served, that since at least 2013 he had rented out the dwelling at the address reflected on the affidavit of the process server, that it had been rented to the individual reflected on the affidavit of service, that defendant "did not live or otherwise reside [at the address] in any form," and instead that he had been living at another address at the time of the purported service. Contrary to plaintiff's contention, defendant's submissions raised " ‘a genuine question’ " on the issue whether service was properly effected in accordance with CPLR 308 (2) ( Fabian , 20 A.D.3d at 897, 797 N.Y.S.2d 338 ).
In light of that determination, however, we agree with plaintiff's alternative contention that defendant's submissions rebutting the presumption of service " ‘necessitate[d] an evidentiary hearing’ " ( Cach, LLC , 158 A.D.3d at 1194, 71 N.Y.S.3d 237 ; see Federal Natl. Mtge. Assn. v. Alverado , 167 A.D.3d 987, 988, 90 N.Y.S.3d 308 [2d Dept. 2018] ), and thus we conclude that the court erred in granting defendant's motion without a hearing. We therefore reverse the order and remit the matter to Supreme Court to conduct a hearing on that issue and to determine defendant's motion following the hearing (see generally Fabian , 20 A.D.3d at 897, 797 N.Y.S.2d 338 ).