On November 13, 2024, the Second Department issued a decision in U.S. Bank N.A. v. Henry, 2024 NY Slip Op. 05555, holding that a defendant’s affidavit showing that she did not live at the address where service was made required a traverse hearing on service, explaining:
A process server’s affidavit gives rise to the presumption of proper service. While 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. If the presumption is rebutted, a hearing to determine the propriety of service of process is necessary.
Here, the affidavit of the plaintiff’s process server indicated that he served the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint on a particular date and time to the defendant’s sister at an address in New Jersey, followed by the required mailing to the defendant at the same address. The process server averred that the sister was a person of suitable age and discretion and that she had replied in the affirmative when asked if the New Jersey address was the defendant’s dwelling place/usual place of abode. This evidence constituted prima facie proof of proper service upon the defendant and, thus, gave rise to a presumption of proper service. The defendant successfully rebutted the process server’s affidavit by submitting in support of her motion, among other things, a sworn denial of service containing specific averments that she did not reside at the New Jersey address at the time service allegedly was made and that her actual place of residence at that time was in Pennsylvania. Contrary to the determination of the Supreme Court, the conflicting evidence about the location of the defendant’s dwelling or usual place of abode at the time of service of process presented issues of credibility necessitating a hearing.
(Internal quotations and citations omitted).