Edwards, Angell, Palmer & Dodge, LLP v. Gerschman

• Decision Date: 16 April 2014
• Citation: 984 N.Y.S.2d 392,2014 N.Y. Slip Op. 02559,116 A.D.3d 824
• Court: New York Supreme Court — Appellate Division
• Parties: EDWARDS, ANGELL, PALMER & DODGE, LLP, respondent, v. Thomas GERSCHMAN, appellant.

116 A.D.3d 824

984 N.Y.S.2d 392

2014 N.Y. Slip Op. 02559

EDWARDS, ANGELL, PALMER & DODGE, LLP, respondent,

v.Thomas GERSCHMAN, appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 16, 2014.

Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for appellant.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

In an action, inter alia, to recover fees for legal services rendered, the defendant appeals from an order of the Supreme Court, Suffolk County (Asher, J.), dated March 28, 2013, which denied, as academic, his motion pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether the defendant was properly served with copies of the summons and complaint pursuant to CPLR 308(1), and thereafter a new determination of the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.

The plaintiff law firm commenced this action, inter alia, to recover fees for legal services rendered. According to an affidavit of service, a process server personally served the defendant at an address in Sagaponack on October 23, 2012. By notice of motion dated February 4, 2013, the defendant moved pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. In the order appealed from, the Supreme Court denied the defendant's motion as academic, noting that the parties, on February 3, 2013, entered into a preliminary conference order. The defendant appeals.

“A process server's affidavit of service constitutes prima facie evidence of proper service” ( Scarano v. Scarano, 63 A.D.3d 716, 716, 880 N.Y.S.2d 682). “Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitatesan evidentiary hearing ( see Skyline Agency v. Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server's affidavits' ” ( Scarano v. Scarano, 63 A.D.3d at 716, 880 N.Y.S.2d 682, quoting Simonds v. Grobman, 277 A.D.2d 369, 370, 716 N.Y.S.2d 692;see Bank of N.Y. v. Samuels, 107 A.D.3d 653, 653, 968 N.Y.S.2d 93).

Here, although the process server's affidavit constituted prima facie evidence of proper service, the defendant's sworn claims that his lease for the subject premises expired in May 2007, and was not extended, that he vacated the premises in approximately May 2007, and that he did not reside at the subject premises at the time of alleged service of copies of the summons and complaint, along with his submission of documentary and other evidence supporting those claims, was sufficient to rebut the prima facie showing, and to necessitate a hearing ( see Dime Sav. Bank of Williamsburg v. 146 Ross Realty, LLC, 106 A.D.3d 863, 864, 966 N.Y.S.2d 443;Toyota Motor Credit Corp. v. Lam, 93 A.D.3d 713, 714, 939 N.Y.S.2d 869;U.S. Bank, N.A. v. Arias, 85 A.D.3d...