Cole v. Shorter

Opinion

Cole v Shorter

2026 NY Slip Op 05273

September 16, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

David Evaud Cole, appellant,

v

Tatum Sade Shorter, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 16, 2026

2024-09551, (Index No. 530733/23)

Betsy Barros, J.P.

Lara J. Genovesi

Helen Voutsinas

Carl J. Landicino, JJ.

Martha Tabachnikova, Brooklyn, NY (Andrei A. Popescu of counsel), for appellant.

Richard Schoenberg (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Kerry J. Ward, J.), dated May 16, 2024. The order granted the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiff's cross-motion pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff commenced this action against the defendant to recover damages for personal injuries that the plaintiff allegedly sustained in a motor vehicle accident. In her answer, the defendant asserted various affirmative defenses, including lack of personal jurisdiction based on failure to serve process. Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint for lack of personal jurisdiction, among other grounds. The plaintiff cross-moved pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint. In an order dated May 16, 2024, the Supreme Court granted the defendant's motion and denied the plaintiff's cross-motion. The plaintiff appeals.

"'Ordinarily, a process server's affidavit of service constitutes prima facie evidence of proper service and, therefore, gives rise to a presumption of proper service. Where, however, there is a sworn, nonconclusory denial of service by a defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing'" (U.S. Bank N.A. v Fessler, 231 AD3d 896, 898, quoting Nationstar Mtge., LLC v Stroman, 202 AD3d 804, 807). "'While bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption of proper service'" (Bank of N.Y. v Ilonzeh, 203 AD3d 1119, 1120, quoting PNC Bank, N.A. v Lefkowitz, 185 AD3d 1069, 1070).

Here, a process server's affidavit constituted prima facie evidence of proper service [*2]pursuant to CPLR 308(2) upon the defendant (see Gilhuys v Trovato, 233 AD3d 963, 964; Kokolis v Wallace, 202 AD3d 948, 950). Contrary to the defendant's contention, her affidavit denying that she resided at the address where service allegedly was effectuated was conclusory and unsubstantiated and, therefore, was insufficient to rebut the presumption of proper service (see Rodriguez v Kvatchadze, 237 AD3d 765, 766; Zhiying Wang v Bin Wu, 208 AD3d 1211, 1212). Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

The plaintiff's contention that the Supreme Court should have granted his cross-motion pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint is academic in light of the foregoing.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court