WILMINGTON SAVINGS FUND SOCIETY FSB v. Yvonne Walker, et al., Defendants. (2026)

Order, Supreme Court, Bronx County (Naita A. Semaj, J.), entered on or about April 4, 2025, which, to the extent appealed from as limited by the briefs, granted defendant Joan Virgin's motion to dismiss the complaint based on lack of personal jurisdiction or, in the alternative, to vacate her default or extend her time to serve an answer, to the extent of directing a traverse hearing to determine whether defendant was properly served, unanimously affirmed, without costs.

The assertions by Virgin's son, who was identified in the affidavit of service as having accepted delivery of the summons and complaint, that he did not match the process server's description of him were not, by themselves, sufficient to warrant a hearing.  The server described the son as a 35–year–old Black male between five feet, eight inches and 5 feet, 11 inches.  The son attested in support of Virgin's motion that he was five feet, five inches and, at the time of service, 31 years old.  These discrepancies, were not sharp enough to warrant a hearing (see HSBC Bank USA, N.A. v. Proctor, 232 A.D.3d 439, 439–440, 220 N.Y.S.3d 292 [1st Dept 2024] ).  This was particularly so given that plaintiff produced a copy of the son's driver's license, which stated that he was five feet, seven inches – only an inch shorter than the height range the process server identified.

However, Virgin otherwise adequately rebutted service to warrant a traverse hearing.  According to the affidavit of service, the process server delivered the summons and complaint to Virgin's son on November 26, 2019, at 8:48 p.m., at Virgin's home.  Her son's affidavit attested to the fact that, at the time of the purported service, he was not at the subject property but attending a class, which started at 6:00 p.m. that day.  These statements were sufficiently nonconclusory to warrant a traverse hearing (see JP Morgan Chase Bank v. Dennis, 166 A.D.3d 530, 531, 89 N.Y.S.3d 135 [1st Dept 2018] ).