Balancio v. Santorelli

267 A.D.2d 189, 699 N.Y.S.2d 312, 1999 N.Y. App. Div. LEXIS 12541

Opinion

—In an action to recover damages for wrongful death, the defendants Alfredo Santorelli,, Roseanne Santorelli, and Anthony Santorelli appeal from an order of the Supreme Court, Westchester County (Donovan, J.), entered December 11, 1998, which denied, without a hearing, their motion to vacate a judgment of the same court, entered September 2, 1997, upon their default in appearing and answering.

Ordered that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Westchester County, for a hearing on the issue of whether proper service of process was effected upon the appellants in accordance herewith.

As a general rule, a sworn denial of service by a defendant rebuts the process server’s affidavit of service, and the plaintiff is required to establish personal jurisdiction over the defendant by a preponderance of the evidence adduced at a hearing (see, Bank of Am. Natl. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Long Is. Sav. Bank v Meliso, 229 AD2d 478; Wern v D’Alessandro, 219 AD2d 646). Here, the appellants’ sworn denials of service were sufficient to render the affidavits of service inconclusive, creating factual issues that must be resolved at a hearing (see, Jannace v Nelson, L.P., 256 AD2d 385), at the conclusion of which the court should determine the motion to vacate the judgment. S. Miller, J. P., Thompson, Krausman, Florio and Schmidt, JJ., concur.