Generally, where a defendant rebuts an affidavit of service with a sworn denial of service, the court will order a traverse hearing where the plaintiff must establish jurisdiction by a preponderance of the evidence. The purpose of this hearing is for the plaintiff to demonstrate jurisdiction convincingly. The court decided that a traverse hearing was unnecessary in 215 African & Hispanic American Realty of NY, LLC v Air Chef[1].
In this case, judgment debtor Mr. Aggarwal moved to vacate a default judgment and dismiss the complaint for lack of jurisdiction based on improper service. The plaintiff claimed conspicuous place service with follow-up mailing (or, as it is more commonly known, "nail and mail") under CPLR § 308(4).
The court seemed to find Mr. Aggarwal's affidavit denying service compelling. The affidavit set forth six specific facts strongly suggesting that service was improper, which the court detailed in its opinion:
- The defendant, Mr. Aggarwal, stated he had not lived at the Woodhaven address on the affidavit of service for ten years;
- Mr. Aggarwal offered NYC ACRIS[2] records, which showed the property at the address served was owned by someone else;
- The defendant denied any recollection of the neighbor the process server claimed to have spoken to;
- He submitted a set of utility bills that showed he lived at a different address at the time service was allegedly made;
- He also submitted his license for the same period, showing he lived at a different address;
- Mr. Aggarwal also stated in his affidavit that if the plaintiff obtained the Woodhaven address from a credit/lease application he had completed in 1996, it was unreasonable to think the defendant had not changed his address since then.
Despite having the option to proceed with a traverse hearing, the court opted against it. The rationale was that the undisputed facts strongly favored dismissal. The court stated, "Here, no traverse hearing is needed in light of plaintiff's failure to refute Aggarwal's claim that the Woodhaven address was not his actual dwelling place or usual place of abode. Plaintiff's service of the summons and complaint at defendant's last known address is insufficient as a matter of law."
In reaching its conclusion, the court leaned on the precedent set in Feinstein v. Bergner[3], 48 NY2d 234 [1979]. This precedent established that while the mailing aspect of service could be directed to the defendant's last known address, the physical affixing of the documents must occur at the defendant's actual residence or regular abode.
As a result of these considerations, the court vacated the judgment and dismissed the complaint. This decision was based on the plaintiff's inability to serve the defendant properly within the 120-day timeframe stipulated by CPLR § 306-b. This case underscores the critical importance of accurate and legally compliant service of process in legal proceedings.
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