Opinion
May 1, 1995
Appeal from the Family Court, Westchester County (Bellantoni, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for an evidentiary hearing on the appellant's motion to vacate his default.
Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a party is sufficient to support a finding of jurisdiction. Where, however, as here, there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence at a hearing (see, Skyline Agency v Ambrose Coppotelli, Inc., 117 A.D.2d 135). Accordingly, the Family Court erred in denying the motion to vacate the appellant's default without conducting a hearing on the issue of whether proper service had been effectuated and whether the appellant had a meritorious defense to the petition (see, Matter of Tauber v Tauber, 152 A.D.2d 674; D'Alleva v D'Alleva, 127 A.D.2d 732). Balletta, J.P., Thompson, Santucci, Altman and Hart, JJ., concur.