Summary
holding that the issue of service under C.P.L.R. section 308 is properly determined "without first conducting a hearing" where the movant has failed "to specifically refute the contents of the affidavits of service or substantiate . . . conclusory allegations"
Summary of this case from Desouza v. Plusfunds Group, Inc.Opinion
June 23, 1997
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the order is affirmed, with costs.
In opposition to the plaintiff's motion for summary judgment, the appellants argued, inter alia, that they had not been served with the summons and complaint. The trial court rejected this argument on the ground that the appellants' allegations were vague and conclusory and insufficient to raise an issue of fact. The appellants' sole contention on appeal is that the court erred in deciding this jurisdictional issue without holding a hearing. We disagree.
The affidavits of the process server constitute prima facie evidence of proper service pursuant to CPLR 308 (2), and the appellants' conclusory denials of service are insufficient to raise any issue of fact ( see, Sando Realty Corp. v. Aris, 209 A.D.2d 682; Genway Corp. v. Elgut, 177 A.D.2d 467). Since the appellants failed to specifically refute the contents of the affidavits of service or substantiate their own conclusory allegations, the trial court properly determined the issue of service without first conducting a hearing ( see, Sando Realty Corp. v. Aris, supra; Genway Corp. v. Elgut, supra).
Miller, J.P., Sullivan, Joy and Altman, JJ., concur.