On March 16, 2026, Justice Boddie of the Kings County Commercial Division issued a decision in Biz Advance Now, Inc. v. BHMAAA Inc., 2026 NY Slip Op. 31001(U), holding that a defendant’s failure to submit an affidavit rebutting service was fatal to a challenge to service, explaining:
Ordinarily, a process server’s sworn affidavit of service is prima facie evidence of proper service pursuant to CPLR 308(2). However, a defendant can rebut a process server’s affidavit by a detailed and specific contradiction of the allegations in the process server’s affidavit. A defendant’s bare and unsubstantiated denial of receipt was insufficient to rebut the presumption of proper service.
Here, the affidavits of plaintiffs licensed process server constituted prima facie evidence of proper service pursuant to CPLR 308(2). Contrary to defendants’ contention, they failed to rebut this presumption of proper service since they did not, in their affidavits submitted in support of the motion swear to specific facts sufficient to rebut the statements contained in the process server’s affidavits, nor did they submit competent evidentiary proof supporting their assertions. Notably, the denial concerning service upon defendant Albert Alfaks is not made by the defendant himself, but by a non-party. Even after plaintiff pointed out this deficiency in its opposition papers, defendants failed to cure the defect in reply by submitting an affidavit from defendant Albert Alfaks himself. Instead defendants rely on the affirmation of Aimee Cohen, who asserts that she is the only co-resident that no mailing was received and that no one matching the process server’s description resides at the premises. Such assertions by a non-party are insufficient to rebut the presumption of proper service created by the process server’s sworn affidavit.
(Internal quotations and citations omitted).