Johnson v. Deas

McGuire, J.,

dissents in a memorandum as follows: In my view, defendant failed to rebut plaintiffs prima facie showing of proper service. Accordingly, I respectfully dissent.

The affidavit of plaintiff’s process server constituted prima facie evidence of proper service (see Matter of Nazarian v Monaco Imports, 255 AD2d 265 [1998]). To rebut this prima facie showing, defendant was required to submit a sworn, nonconclusory denial of service or swear to specific facts to rebut the statements in the process server’s affidavit (see NYCTL 1998-1 Trust & Bank of N.Y. v Rabinowitz, 7 AD3d 459 [2004]; Puco v DeFeo, 296 AD2d 571 [2002]; Simonds v Grobman, 277 AD2d 369 [2000]). No affidavit from defendant was proffered in opposition to plaintiffs motion for leave to enter a default judgment. Moreover, neither the denial of service by counsel, who had no personal knowledge of the facts surrounding service on defendant (see Lynch v New York City Tr. Auth., 12 AD3d 644 [2004] [affirmation of defendant’s counsel insufficient to rebut *255statements in the process server’s affidavit]), nor the documentary evidence indicating that the building at which service was effected had been ordered “closed” by the New York City Department of Buildings were sufficient (see generally Olesniewicz v Khan, 8 AD3d 354 [2004] [affidavit by nonparty regarding propriety of service insufficient to rebut prima facie showing]; Simonds, supra [same]). Indeed, nothing in any of defendant’s submissions establishes that defendant was not residing in the building at issue at the time process allegedly was served.*

There is certainly nothing unfair about requiring a sworn, nonconclusory denial of service or a sworn statement rebutting the statements in the process server’s affidavit, which carries with it the significant benefits of a bright-line, easily administered rule. A party who was not served (or asserts nonresidence at the address specified by the process server), should be required so to state under oath. As is evident, this requirement promotes the goal of accurate factual determinations by trial courts. To relieve a defendant of that simple burden encourages gamesmanship and the waste of judicial resources. There is no authority for the majority’s conclusion that, in the wake of a prima facie showing of proper service, a defaulting defendant may be accorded a traverse hearing in the absence of a sworn, nonconclusory denial of service or a sworn statement rebutting the statements in the process server’s affidavit (cf. Ismailov v Cohen, 26 AD3d 412 [2006]; Haberman v Simon, 303 AD2d 181 [2003]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]; European Am. Bank & Trust Co. v Serota, 242 AD2d 363 [1997]). Therefore, I would affirm the order appealed.

The majority emphasizes that the summons and complaint, request for judicial intervention (RJI) and motion papers list defendant’s address as other than the one at which he was served. Specifically, the address listed for defendant on each of these documents is that of plaintiff, indicating that the parties resided together. Putting aside the obvious — that none of these documents are an affidavit of service — the summons and complaint are dated one month before service was effected, and the RJI and motion papers postdate service by approximately 8½ months. Clearly, these documents do not purport to indicate defendant’s residence on the date service was effected. Similarly, both the photographs and returned envelopes referred to by the majority were generated approximately nine months after service allegedly was effected.