Tuesday, January 3, 2017

The presumption of proper service.

Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.  When a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the process server's affidavit, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.  A hearing is not required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavit.

Case:  Emigrant Bank v. Ramasir, NY Slip Op 08503 (2d Dep't December 21, 2016)

Here is the decision.

Tomorrow's issue:  An insufficient motion to strike an answer.