On May 3, 2024, the Fourth Department issued a decision in Estate of Essig v. Essig, 2024 NY Slip Op. 02396, holding that denial of receipt of service or presence at service address was insufficient to overcome the prima facie validity of an affidavit of service, explaining:
[W]e reject defendant’s contention that Supreme Court erred in granting plaintiff’s motion and that defendant was entitled to a traverse hearing. Plaintiff established his entitlement to default judgment against defendant by submitting proof of service of the summons and the complaint, the facts constituting the claim, and defendant’s default. Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served. Although bare and unsubstantiated denials are insufficient to rebut the presumption of service a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing. In support of the motion, plaintiff submitted an affidavit of a process server stating that defendant was personally served at a particular time and date at an address in Zephyrhills, Florida, and describing the race, hair, age, height, and weight of the person served.
In opposition to the motion, defendant submitted an affidavit stating that the address where he was allegedly served was not his residence; that no one had ever served him with papers for a new lawsuit; that no one had ever come to his residence in Florida to serve him papers for this lawsuit; and that no one had delivered lawsuit papers to him at any other address. Contrary to defendant’s assertion, this is not a situation in which service was required to be mailed to a residence. Rather, this situation involves personal service, which, pursuant to CPLR 308 (1), may be made by delivering the summons to the person to be served. There is no requirement that such service be effectuated at any particular location and, as a result, it is irrelevant that the address listed on the affidavit of service is not defendant’s residence.
Moreover, defendant did not dispute that he matched the description of the person served as set forth in the affidavit of the process server, contending only that you can’t swing a dead cat in Florida without hitting a man of the same] description. Discrepancies between the appearance of the person allegedly served and the description given in the affidavit of service must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect.
Aside from general denials of service, defendant submitted no specific facts that would rebut the prima facie evidence of service provided by the affidavit from the process server. We thus conclude that defendant’s denial of service in this case was insufficient to rebut the presumption of proper service created by the plaintiff’s duly executed affidavit of service, or to raise issues of fact requiring a traverse hearing.
(Internal quotations and citations omitted).