265 NORTH BROADWAY LLC v. ROURKE (2022)

The following papers numbered 1 to 2 were read and considered on the Petitioner's motion to restore the matter to the calendar and granting leave to submit opposition.

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Affirmation/Affidavits in Opposition 2

Petitioner's motion to vacate the Court's decision dated March 21, 2022, restore the proceeding, and restore the motion to permit Petitioner to submit opposition is granted to the extent that the above-entitled matter is restored to the court's calendar.

The Court, in its discretion, will relieve Petitioner's default caused by law office error. CPLR § 2005. Petitioner timely moved, upon receipt of the Court's March 21, 2022, decision to vacate the Court's order. Further, Petitioner has demonstrated a meritorious cause of action.

With respect to Respondents’ arguments regarding the process server's affidavit, CPLR § 306(b) requires proof of service to include “a description of the person to whom it was so delivered, including, but not limited to, sex, color of skin, hair color, approximate age, approximate weight and height and other identifying features.” However, the failure of the process server to describe the person who was allegedly served is not a jurisdictional defect if service was properly made. Best v. City of New York, 101 AD2d 847 (2d Dept, 1984); see also Mrwik v. Mrwik, 49 AD2d 750 (2d Dept., 1975). Ordinarily the process server's affidavit of service operates to establish a prima face case as to the method of service and there is, accordingly, a presumption of proper service. A defendant challenging the affidavit of service must demonstrate a denial of specific facts that contradict the affidavit of service.

Further, Respondent's allegations that Petitioner failed to abide RPL § 235-e(d) prior to initiating the underlying eviction proceeding are misplaced as the statute was amended in 2019 and inapplicable at the time the action was commenced.

The Court is unable, on the record before it, to determine whether service was properly effectuated. “If a defendant makes the required showing to rebut the presumption of proper service that arises from the process server's affidavit of service, the defendant is entitled to a hearing on service.” US Bank Nat. Ass'n v. Cherubin, 141 AD3d 514 (2d Dept, 2016).

Accordingly, the decision dated March 21, 2022, is vacated and the matter is restored and will appear on the Court's calendar for conference and to set a traverse hearing on June 16, 2022, in Part IV at 9:30 A.M.

Appearances are required.

Arthur J. Doran III, J.