Wednesday, March 24, 2010

Rebutting the Presumption of Proper Service

By  Nicholas M. Moccia
      Law Offices of Robert E. Brown, P.C. 
Washington Mut. Bank v Holt,  2010 NY Slip Op 01787 (2d Dep't 2010)

Here, the Second Department reverses the Queens County, Supreme Court, judgment of foreclosure and sale.  The Second Department remitted the case to the Supreme Court in order to conduct a traverse hearing to determine whether the defendant homeowner was properly served with process.

Generally, 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. However, a defendant's sworn denial that he was served by the plaintiff's process server and submission of proof of unexplained, serious irregularities in the service of the reputed tenants of the foreclosed property involving the same process server has rebutted this presumption of proper service. In light of defendant's denial of receipt of the summons and complaint served pursuant to CPLR 308(4) and the submission of an affidavit raising bona fide concerns involving the veracity of the process server, a hearing was ordered to determine, by a preponderance of the evidence, if the process server acted with due diligence before resorting to "nail and mail" service pursuant to CPLR 308(4).  See Mortgage Access Corp. v Webb, 11 A.D.3d 592, 593 (2d Dep't 2004); Bankers Trust Co. of Cal. v Tsoukas, 303 A.D.2d 343, 344 (2d Dep't 2004).

Washington Mut. Bank v Holt

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