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Sworn Denial of Process Warrants Evidentiary Hearing

July 21, 2023

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<p style="text-align: justify;">After a default judgment has been entered in a plaintiff’s favor, under the right circumstances, the defendant’s fight has only just begun. Pursuant to CPLR 5015(a)(4) and 3211(a)(8), a plaintiff may move to dismiss and vacate a judgment on grounds that the court lacked personal jurisdiction. Under 5015(a)(4), such a motion to vacate can be made at any time.</p>
<p style="text-align: justify;">In <em><a href="">Tijuan Aikens v. Valentina Kouchnerova</a>, et a</em>l., 2023 NY Slip Op 03218 (2d Dep’t June 14, 2023), the Court was faced with a plaintiff who was allegedly injured in 2008 by a slip and fall at premises owned by the defendant. In 2010, within the time permitted, the plaintiff filed a suit for damages suffered as a result of personal injuries.</p>
<p style="text-align: justify;">But the court never reached the merits since the defendant failed to answer or otherwise appear. In 2011, the plaintiff filed a motion for entry of default judgment, which the court granted. The court entered a sum of $100,000 after an inquest in 2013.</p>
<p style="text-align: justify;">In 2019, the Supreme Court denied the defendant’s motion to vacate under CPLR 5015(a)(4), determining that personal jurisdiction existed by way of proper service of process. The Supreme Court adhered to the rule that “[o]rdinarily, the affidavit of a process server constitutes prima facie evidence that the defendant was validly served.” See <em>Wachovia Bank, N.A. v. Greenberg</em>, 138 AD3d 984, 985.</p>
<p style="text-align: justify;">But the presumption of proper service created by a server’s affidavit is rebuttable. The mere denial of service is insufficient on its own to rebut such a presumption. But fortunately for the defendant, under <em>Deutsche Bank Natl. Trust Co. v DaCosta</em>, “a sworn denial of service containing specific facts generally rebuts the presumption of proper service. . . and necessitates an evidentiary hearing” See <em>Deutsche Bank Natl. Trust Co. v. DaCosta,</em> 97 AD3d at 631.</p>
<p style="text-align: justify;">Under oath, the defendant twice denied receiving service of process at properties located in Florida and New York. The two sworn denials were specific and convincing enough to warrant vacating the judgment and ordering that an evidentiary hearing be held.</p>
<p style="text-align: justify;">The Court’s holding serves as a warning and underscores the importance of lawyers performing their due diligence before waiving jurisdictional defenses early in litigation. CPLR 5015(a)(4) and 3211(a)(8) can combine to form a valuable and lucrative shield.</p>
Thanks to Mark Kindschuh for his contribution to this post. Please contact <a href="">Heather Aquino</a> with any questions.

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