CPLR R. 3211(a)(8)the court has not jurisdiction of the person of the defendant
Associates First Capital Corp. v Wiggins, 2010 NY Slip Op 06225 (App. Div., 2nd, 2010)
The Supreme Court properly denied, without a hearing, inter alia, that branch of the defendants' motion which was to dismiss the complaint for lack of personal jurisdiction. "A process server's affidavit of service constitutes prima facie evidence of proper service" (Scarano v Scarano, 63 AD3d 716, 716). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits'" (Scarano v Scarano, 63 AD3d at 716, quoting Simonds v Grobman, 277 AD2d 369, 370). Here, since the defendants' affidavits amounted to no more than bare and conclusory denials of service which were insufficient to rebut the prima facie proof of proper service pursuant to CPLR 308(1) and (2) created by the process server's affidavit, no hearing was required (see City of New York v Miller, 72 AD3d 726; Scarano v Scarano, 63 AD3d at 716; Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983, 983; 425 E. 26th St. Owners Corp. v Beaton, 50 AD3d 845, 846; Simonds v Grobman, 277 AD2d 369, 370).
By "defendant's sworn denial of receipt" the Court does not mean that just anyone can deny receipt. The person who was served has to do it or a person with sufficient knowledge. "I checked the file" is not sufficient. But, like anything else, there are exceptions.
For some crazy reason, typepad decided to get rid of the justify button. Posts will take longer because of this.
bruteforcelawyer.com 