On September 17, 2025, the Second Department issued a decision in Bank of N.Y. Mellon v. Simpson, 2025 NY Slip Op. 04970, ordering a traverse hearing because of questions regarding the adequacy of the nail and mail service, explaining:
Pursuant to CPLR 5015(a)(4), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just upon the ground of lack of jurisdiction to render the judgment or order. Service of process upon a natural person must be made in strict compliance with statutory methods of service pursuant to CPLR 308. The failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void. The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff.
CPLR 308 requires that service be attempted by personal delivery of the summons to the person to be served, or by delivery to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode. Service pursuant to CPLR 308(4) may be used only where service under CPLR 308(1) or (2) cannot be made with ‘due diligence. The due diligence requirement of CPLR 308(4) must be strictly observed, given the reduced likelihood that a summons served pursuant to that section will be received. The due diligence requirement may be met with a few visits on different occasions and at different times to the defendant’s residence or place of business when the defendant could reasonably be expected to be found at such location at those times. Additionally, for the purpose of satisfying the due diligence requirement of CPLR 308(4), it must be shown that the process server made genuine inquiries about the defendant’s whereabouts and place of employment.
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. To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server’s affidavit of service. 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 affidavit of service and necessitates a hearing.
Here, an affidavit of service indicated the process server served the borrower pursuant to CPLR 308(4). The affidavit specified that the process server attempted personal service on four weekdays, at various times, prior to effectuating service via affix and mail service. It further indicated that the process server inquired with a neighbor as to the borrower’s employment. Thus, the affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(4) upon the borrower.
However, the defendant sufficiently rebutted the presumption of proper service by submitting, among other things, global positioning system records from the process server that indicated that on one of the dates, the process server attempted service of process at a different address from the address indicated in the affidavit of service. Considering that one of the other dates of attempted service was President’s Day, a national holiday, and the limited inquiry made by the process server as to the borrower’s employment, the Supreme Court should have held a hearing to determine whether service was properly effected pursuant to CPLR 308(4).
Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the borrower was properly served with process pursuant to CPLR 308(4) and a new determination thereafter of those branches of the defendant’s motion which were pursuant to CPLR 5015(a)(4) to vacate the order and judgment of foreclosure and sale and pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her.
(Internal quotations and citations omitted).