KELLY v. MAGARIE (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Joseph C. Pastoressa, J.), dated January 8, 2025. The order, after a hearing, granted those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in answering the complaint or appearing in the action and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

On May 27, 2021, the plaintiff, a police officer, allegedly was injured when he responded to a call about a domestic disturbance at a residence located in West Babylon, and the defendant allegedly assaulted him.

In March 2022, the plaintiff commenced this action against the defendant to recover damages for personal injuries. According to an affidavit of service of the plaintiff's process server sworn to on March 25, 2022, the defendant was served with the summons and complaint pursuant to CPLR 308(4) by affixing a copy of the summons and complaint to the door of the defendant's usual place of abode located in West Babylon and by mailing those documents to the same address. The defendant failed to timely answer the complaint or appear in the action. In an order dated November 1, 2022, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendant.

In March 2024, the defendant moved, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in answering the complaint or appearing in the action and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The plaintiff opposed the motion. In an order dated June 26, 2024, the Supreme Court directed a hearing to determine the validity of service.

In an order dated January 8, 2025, made after the hearing, the Supreme Court granted those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in answering the complaint or appearing in the action and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The plaintiff appeals.

“A court lacks personal jurisdiction over a defendant who is not properly served with process” (Matter of Lester Korinman Kamran & Masini, P.C. v Davis, 227 AD3d 906, 907). “Ordinarily, a process server's affidavit of service constitutes prima facie evidence of valid service” (PennyMac Corp. v. Barbosa, 189 AD3d 863, 865). “A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit” (Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d 758, 759 [internal quotation marks omitted]). “However, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the process server's affidavit, and necessitates an evidentiary hearing” (115 Essex St., LLC v. Tenth Ward, LLC, 227 AD3d 640, 642 [internal quotation marks omitted]).

“Service pursuant to CPLR 308(4) may be effected ‘by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business' ” (Aurora Loan Servs., LLC v. Simon, 216 AD3d 716, 716–717, quoting CPLR 308[4]). “Service pursuant to CPLR 308(4) may be used only where personal service under CPLR 308(1) and (2) cannot be made with due diligence” (Wilmington Sav. Fund Socy., FSB v Zabrowsky, 212 AD3d 866, 868–869 [internal quotation marks omitted]). “To satisfy the ‘due diligence’ requirement, the plaintiff must demonstrate that the process server made genuine inquiries about the defendant's whereabouts and place of employment” (Bank of N.Y. Mellon v. DeFilippo, 242 AD3d 1165, 1166).

Contrary to the plaintiff's contention, the defendant sufficiently rebutted the presumption of proper service by submitting, inter alia, affidavits from himself, his wife, and his mother. The affiants attested that after the defendant was arrested for the incident on May 27, 2021, upon his release from custody, which the plaintiff does not dispute preceded the alleged date of service, the defendant moved to the home of his mother located in West Hempstead and continued to reside at that address through the pendency of this action (see Castillo-Florez v. Charlecius, 220 AD3d 1, 14; Board of Mgrs. of Oceana Condominium No. Two v Medianik, 170 AD3d 793, 794). Accordingly, the Supreme Court properly directed a hearing to determine whether the defendant was properly served pursuant to CPLR 308(4).

“At a hearing to determine the validity of service, the burden of proving the existence of personal jurisdiction is on the party asserting it, and that party must sustain that burden by a preponderance of the credible evidence” (Federal Natl. Mtge. Assn. v. Smith, 219 AD3d 938, 941 [internal quotation marks omitted]). “In reviewing a determination made after a [traverse] hearing, this Court's authority is as broad as that of the hearing court, and this Court may render the determination it finds warranted by the facts, taking into account that in a close case, the hearing court had the advantage of seeing the witnesses” (Deutsche Bank Natl. Trust Co. v Deutsch, 211 AD3d 809, 810 [internal quotation marks omitted]).

Here, taking into account that the hearing court had the advantage of seeing and hearing the testimony of the process server at the hearing, the record does not reflect a basis to disturb the hearing court's determination that the plaintiff failed to demonstrate by a preponderance of the evidence that the defendant was properly served pursuant to CPLR 308(4) (see Wells Fargo Bank, N.A. v. Barasch, 188 AD3d 955, 956; Cadlerock Joint Venture, L.P. v Kierstedt, 119 AD3d 627, 629). At the hearing, when asked if he took “any steps either at the time of service or after the alleged service ․ to determine where [the defendant] worked,” the process server unequivocally answered “[n]o.” Although the process server subsequently stated, in response to a question by the Supreme Court as to what a neighbor told him about the defendant's employment, “[t]hey didn't know,” the process server never testified as to what, if any, inquiries he made of the neighbor. Thus, the process server's vague testimony was insufficient to satisfy the plaintiff's burden of demonstrating that the process server exercised due diligence before resorting to affix and mail service pursuant to CPLR 308(4) by making “genuine inquiries” regarding the defendant's place of employment (Bank of N.Y. Mellon v. DeFilippo, 242 AD3d at 1166). Accordingly, the court properly granted those branches of the defendant's motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate his default in answering the complaint or appearing in the action and pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

The plaintiff's remaining contentions either are not properly before this Court, need not be reached in light of our determination, or are without merit.

DILLON, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.