Bare Denial of Receipt of Service Insufficient to Overcome Presumptive Validity of Affidavit of Service

On April 26, 2023, the Second Department issued a decision in U.S. Bank Trust, N.A. v. Catalano, 2023 NY Slip Op. 02139, holding that a bare denial of receipt of service was insufficient to overcome the presumptive validity of an affidavit of service, explaining:

A process server’s affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server’s affidavit. In order to warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service.

Here, the affidavit of the plaintiff’s process server constituted prima facie evidence that the defendant was properly served pursuant to CPLR 308(2). Contrary to the defendant’s contention, his affidavit was insufficient to rebut the presumption of proper service arising from the process server’s affidavit of service. While the defendant asserted that he did not reside at the property, he did not specifically deny having resided at the property on the date Debra Catalano accepted service on his behalf.

(Internal quotations and citations omitted).

Stay informed!
Sign up for email alerts and notifications here.
Read more about our Complex Commercial Litigation practice.