245 FIFTH OWNER LLC v. ENIGMA TECHNOLOGIES INC XYZ (2025)

Order (Richard A. Tsai, J.), entered March 15, 2024, reversed, with $10 costs, and defendant's motion to vacate the default judgment and to dismiss the petition is granted to the extent of remanding the matter for a traverse hearing and further proceedings consistent with the determination rendered after such hearing. Appeal from order (Richard A. Tsai, J.), entered March 15, 2024, dismissed, without costs, as academic.

In this commercial nonpayment proceeding, landlord's affidavit of service indicated that service of the petition and notice of petition was effectuated upon tenant Enigma Technologies, Inc. at the property sought to be recovered, pursuant to RPAPL § 735, by delivery to an individual, Julia Emerilie, who stated that she is authorized to accept service. In response, tenant indicated, among other things, that: it previously vacated the premises with landlord's knowledge and no longer had employees there; Julia Emerilie was employed by Regal Voice, Inc., an entity that sublet one of tenant's three floors; Regal was in negotiations with landlord regarding a direct lease; and tenant was completely unaware of the proceeding.

“While a proper affidavit of a process server attesting to personal delivery constitutes prima facie evidence of proper service, a sworn nonconclusory denial of service by a defendant is sufficient to dispute the veracity or content of the affidavit, requiring a traverse hearing” (NYCTL 1998—1 Trust & Bank of NY v Rabinowitz, 7 AD3d 459, 460 [2004]; see also Bank of Am., N.A. v Diaz, 160 AD3d 457, 458—459 [2018]). On this record, the parties' competing averments raise a factual issue concerning whether Julia Emerilie was “a person of suitable age and discretion” employed at the property sought to be recovered (RPAPL § 735; see Bakht v Akhtar, 18 Misc 3d 78, 79 [App Term, 2nd Dept 2007]), which determination should be made after a hearing (see 2505 Victory Blvd., LLC v Victory Holding, LLC, 18 Misc 3d 279, 287-288 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

All concur.