MIDLAND FUNDING LLC v. HERNANDEZ (2019)

Supreme Court, Appellate Term, New York,

MIDLAND FUNDING LLC, Plaintiff-Respondent, v. Maura HERNANDEZ, Defendant-Appellant.

570057 /19

Decided: June 24, 2019

PRESENT: Shulman, P.J., Cooper, Edmead, JJ.

Order (Carolyn Walker-Diallo, J.), entered September 12, 2018, modified to grant defendant's motion to the extent of setting the matter down for a traverse hearing; as modified, order affirmed, without costs. Appeal from order (Carolyn Walker-Diallo, J.), dated December 20, 2018, dismissed, without costs, as academic.

The affidavit of plaintiff's process server, describing the personal service of the summons and complaint upon defendant, constituted prima facie evidence of proper service (see NYCTL 2012—A Trust v. Colbert, 146 AD3d 482, 483 [2017]). Defendant's sworn affidavits, inter alia, denying that she was ever served and disputing the process server's description of her, were sufficient to rebut the presumption of proper service (see Johnson v. Deas, 32 AD3d 253, 254 [2006]) and require a traverse (see NYCTL 1998—1 Trust & Bank of NY v. Rabinowitz, 7 AD3d 459, 460 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Per Curiam.

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