Opinion
November 13, 1984
Appeal from the Supreme Court, Kings County (Hirsch, J.).
Order affirmed, without costs or disbursements.
The issue on the traverse hearing was whether defendant was personally served with a summons and complaint on Saturday, December 4, 1982, as asserted in the affidavit of service by plaintiffs' process server, or on Sunday, December 5, 1982, as asserted by defendant. The burden. of proof is upon plaintiffs to establish proper service by preponderating evidence ( Smid v Lombard, 83 A.D.2d 877). In finding that the evidence weighed closely on both sides and that plaintiffs failed to sustain their burden, Special Term based its decision upon the evidence presented as well as the credibility of the witnesses whom it had the opportunity to observe. Based upon our review of the record, we see no reason to disturb the determination of the hearing court ( Altman v Wallach, 104 A.D.2d 391; cf. Old Colony Furniture Co. v Fiegoli, 97 A.D.2d 790). Weinstein, J.P., Brown, Boyers and Eiber, JJ., concur.