FERRER v. WILLIAMS (2024)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered January 9, 2023, which, after a traverse hearing, denied plaintiff's motion for a default judgment and granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff failed to demonstrate, by a preponderance of the evidence, proper service of process on defendant (see New Globaltex Co., Ltd. v. Zhe Lin, 198 A.D.3d 573, 574, 152 N.Y.S.3d 900 [1st Dept. 2021]).  Even if plaintiff's affidavits of service constituted prima facie proof of proper service on defendant, the presumption of proper service was rebutted by averments that service was effected at the wrong address (see Italian Elegant Jewelry, LLC v. Fteha, 206 A.D.3d 493, 494, 171 N.Y.S.3d 65 [1st Dept. 2022]).  The original affidavit of service did not contain the correct information as to the address where defendant was served, as the address was incomplete, i.e., omitted “44” from the street address.  While plaintiff argues that this was a “minor typographical error,” the process server had no independent recollection of the service in question and did not provide any additional information with regard to the circumstances of the alleged service in defendant's gated community (see Forrester v. Luisa, 52 A.D.3d 324, 859 N.Y.S.2d 645 [1st Dept. 2008];  Holtzer v. Stepper, 268 A.D.2d 372, 702 N.Y.S.2d 268 [1st Dept. 2000]).

In addition, there were significant discrepancies between defendant's physical appearance at the time of the alleged service and the description of him provided in the affidavit of service (see Forrester, 52 A.D.3d at 324, 859 N.Y.S.2d 645;  Korea Exch. Bank v. Yung Hyo Kim, 32 A.D.3d 690, 691, 822 N.Y.S.2d 7 [1st Dept. 2006]).  The affidavit of service described defendant as male, tanned, gray hair, over 60 years old, 6 feet, 170 pounds, with glasses, while defendant's son testified that his father was 81 years old at the time of the alleged service and did not wear glasses.  Defendant's license at the time of service stated that he weighed 185 pounds.  Moreover, defendant has two different eye colors and a fake eye, which Supreme Court characterized as an “identifying feature.”  Plaintiff's argument that it is “incredible” that defendant does not wear glasses because it is “sunny” in Florida, is speculative and insufficient to overturn Supreme Court's credibility determinations, which are entitled to deference on appeal (see Arrufat v. Bhikhi, 101 A.D.3d 441, 442, 954 N.Y.S.2d 538 [1st Dept. 2012]).