Holtzer v. Stepper

268 A.D.2d 372, 702 N.Y.S.2d 268, 2000 N.Y. App. Div. LEXIS 727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 25, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Richard Lowe, III, J.), entered March 18, 1999, dismissing the complaint for lack of jurisdiction after a traverse hearing, unanimously affirmed, without costs.

Plaintiffs failed to meet their burden of showing proper service. Any presumption of service raised by the affidavit of service was overcome by defendant’s testimony to the contrary, which has support in the traverse court’s findings of significant discrepancies between defendant’s physical characteristics and the description of him given in the affidavit of service. Moreover, the testimony of plaintiff’s process server failed to rebut defendant’s testimony with convincing additional details of the facts and circumstances surrounding the alleged service (see, De Zego v Bruhn, 67 NY2d 875). We note that at no point in the hearing did plaintiffs’ process server ever identify defendant as the person he served, and find no basis for disturbing the traverse court’s findings of fact, which in large part turned on witness credibility (see, Rezzadeh v Lucas, 253 AD2d 698). Concur—Sullivan, J. P., Tom, Mazzafelli, Wallach and Rubin, JJ.