Verille v. Kopic

Appellate Division of the Supreme Court of New York

Verille v. Kopic

304 A.D.2d 823, 757 N.Y.S.2d 875

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 28, 2003

StatusPublished

Cited by8 cases

This text of 304 A.D.2d 823 (Verille v. Kopic) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Verille v. Kopic, 304 A.D.2d 823, 757 N.Y.S.2d 875 (N.Y. Ct. App. 2003).

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Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated August 9, 2002, which denied his motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court (Reliman, J.H.O.), dated May 26, 1999, and entered upon his failure to appear or answer the complaint.

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 was effected.

Ordinarily a proper affidavit of a process server attesting to personal delivery of a summons to a party is sufficient to support a finding of jurisdiction. Where, as here, however, there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence at a hearing (see Griffin v Griffin, 215 AD2d 386 [1995]; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135 [1986]). Accordingly, the Supreme Court erred in denying the motion to vacate the defendant’s default without conducting a hearing on the issue of whether proper service was effected (see Griffin v Griffin, supra). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.

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In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), dated August 9, 2002, which denied his motion pursuant to CPLR 5015 (a) (4) to vacate a judgment of the same court (Reliman, J.H.O.), dated May 26, 1999, and entered upon his failure to appear or answer the complaint.

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 was effected.

Ordinarily a proper affidavit of a process server attesting to personal delivery of a summons to a party is sufficient to support a finding of jurisdiction. Where, as here, however, there is a sworn denial of service by the party allegedly served, the affidavit of service is rebutted and jurisdiction must be established by a preponderance of the evidence at a hearing (see Griffin v Griffin, 215 AD2d 386 [1995]; Skyline Agency v Ambrose Coppotelli, Inc., 117 AD2d 135 [1986]). Accordingly, the Supreme Court erred in denying the motion to vacate the defendant’s default without conducting a hearing on the issue of whether proper service was effected (see Griffin v Griffin, supra). Santucci, J.P., Smith, Luciano, Schmidt and Mastro, JJ., concur.

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Bluebook (online)

304 A.D.2d 823, 757 N.Y.S.2d 875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verille-v-kopic-nyappdiv-2003.

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