Opinion
6143-06
08-01-2018
MIDLAND FUNDING, LLC, Plaintiff, v. Jone WILLIAMS, Defendant.
Jone Williams, Pros-se Defendant. Selip & Stylianou, LLP, 199 Crossways Park Drive, Woodbury, N.Y. 11797-2016, Attorneys for Plaintiff.
Jone Williams, Pros-se Defendant.
Selip & Stylianou, LLP, 199 Crossways Park Drive, Woodbury, N.Y. 11797-2016, Attorneys for Plaintiff.
Adrian N. Armstrong, J.
The plaintiff commenced this breach of contract action regarding a credit card agreement with the defendant, who did not answer the complaint or appear in the action. In June 2007, this court granted the plaintiff's motion for a judgment on default.
By order to show cause dated June 29, 2018, the defendant moved pursuant to CPLR 5015(a)(1) and (4) to vacate the judgment and to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. The plaintiff opposed the motion, arguing that the defendant was properly served pursuant to CPLR 308(1), and that the defendant failed to proffer a reasonable excuse for "his" default or a meritorious defense to the action.
A process server's affidavit of service gives rise to a presumption of proper service (see Wells Fargo Bank, N.A. v. Final Touch Interiors, LLC , 112 AD3d 813, 814 [2013] ; Matter of Romero v. Ramirez , 100 AD3d 909, 910 [2012] ; Stephan B. Gleich & Assoc. v. Gritsipis , 87 AD3d 216, 220 [2011] ). To be entitled to vacatur of a default judgment and dismissal of a complaint under CPLR 5015 (a) (4), a defendant must overcome the presumption raised by the process server's affidavit of service. A sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service (see Deutsche Bank Natl. Trust Co. v. DaCosta , 97 AD3d 630, 631 [2012] ; Scarano v. Scarano , 63 AD3d 716, 716 [2009] ; Bankers Trust Co. of Cal. v. Tsoukas , 303 AD2d 343, 344 [2003] ). If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary. At the hearing, the burden is on the plaintiff to prove jurisdiction by a preponderance of the evidence (see Matter of Romero v. Ramirez , 100 AD3d at 910 ; Tikvah Enters., LLC v. Neuman , 80 AD3d 748, 749 [2011] ; Wells Fargo Bank, NA v. Chaplin , 65 AD3d 588, 589 [2009] ).
Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308 (see Washington Mut. Bank v. Murphy , 127 AD3d 1167, 1174 [2015] ; Emigrant Mtge. Co., Inc. v. Westervelt , 105 AD3d 896, 896-897 [2013] ). " ‘[T]he failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void’ " ( Krisilas v. Mount Sinai Hosp. , 63 AD3d 887, 889 [2009], quoting McMullen v. Arnone , 79 AD2d 496, 499 [1981] ).
Here, the process server's affidavit of service indicates that the defendant was served with the summons and complaint pursuant to CPLR 308 (1). The defendant avers in her reply papers that she was never served with process, asserting that the affidavit of the process server was actually incorrect, in that it indicates that the defendant was served personally, and describes the defendant as a black "male" with black hair and a mustache, between 21-35 years old, 5'9?-6'0? and 161-200 lbs. Defendant states that her gender is that of a female, not a male, currently she is 53 years old, thus at the time of alleged service she was 42, and no one living in her apartment fits the description in the affidavit of service.
In the case at bar, the defendant herein expressly denies that she has ever been served with legal papers. Additionally, the defendant stated that she did not meet the description of the person described in the affidavit of service of the summons and complaint, and she cited specific, significant discrepancies between her appearance and the description of the person served in the process server's affidavit of service (see Kopman v. Blue Ridge Ins. Co. , 296 AD2d 479, 480 [2002] ).
Given the defendant's unequivocal sworn denial that she had been served, and the presence of significant discrepancies between the description in the affidavit of service and the defendant's own affidavit, it sufficiently raises issues of fact with respect to service of process so as to require a traverse hearing (see CPLR 5015[a] [4] ; Cadin Constr. v. Rich Agency , 158 AD2d 442 [1990] ; Congregation Abath Achim v. Radsminsky , 26 Misc 3d 145[A], 2010 NY Slip Op 50448[U] [App Term, 2d, 11th & 13th Jud Dists 2010] ).
Accordingly, it is
ORDERED that a traverse hearing is directed to be conducted in this court on August 20, 2018 at 2:00 p.m.
This constitutes the Decision and Order of this Court.
The Court considered the following papers on this motion:
Order to Show Cause, Exhibits A-B, dated June 29, 2018; Affirmation in Opposition, Exhibits A-D dated July 10, 2018; Affidavit in Reply dated July 25, 2018.