On May 1, 2024, the Second Department issued a decision in 115 Essex St., LLC v. Tenth Ward, LLC, 2024 NY Slip Op. 02290, holding that when a defendant rebuts the prima facie validity of an affidavit of service, the court should hold a hearing to determine the validity of service, explaining:
Ordinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served. Bare and unsubstantiated denials of receipt of the summons and complaint are insufficient to rebut the presumption of service. However, 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. If an issue regarding service turns upon a question of credibility, a hearing should be held to render a determination on this issue.
Here, the Supreme Court erred in determining the defendant’s motion, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the judgment insofar as entered against him without first conducting a hearing, as the defendant demonstrated his entitlement to a hearing on the issue of service. The process server’s affidavit of service established, prima facie, that the defendant was served pursuant to CPLR 308(2) by delivery of the summons and complaint to “John Doe, Worker,” a person of suitable age and discretion at the defendant’s actual place of business, and by mailing a copy of the summons and complaint to the defendant at his actual place of business. However, the defendant successfully rebutted the process server’s affidavit through his specific averments, inter alia, denying receipt of service, asserting that his actual place of business is not opened to the general public, that he did not have employees working for him at the time of service and was the only one working there, and by pointing to significant discrepancies between the process server’s physical description of John Doe and the defendant’s actual physical appearance. Accordingly, we remit the matter to the Supreme Court, Kings County, for a hearing to determine whether the defendant was properly served with process and for a new determination thereafter of the defendant’s motion, inter alia, pursuant to CPLR 5015(a) and 317 to vacate the judgment insofar as entered against him.
(Internal quotations and citations omitted).