Empire Nat. Bank v. Judal Const. of New York, Inc.
| Decision Date | 06 February 1978 |
| Citation | 401 N.Y.S.2d 852,61 A.D.2d 789 |
| Parties | EMPIRE NATIONAL BANK, Respondent, v. JUDAL CONSTRUCTION OF NEW YORK, INC., et al., Defendants, and David J. Flitt et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Norman Flitt, New York City, for appellants.
Kleinman & Saltzman, P. C., New City (William M. Stein, of counsel), for respondent.
Before MARTUSCELLO, J. P., and DAMIANI, TITONE and SHAPIRO, JJ.
MEMORANDUM BY THE COURT.
In an action on a promissory note, defendants David and Grace Flitt, alleged guarantors, appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County, entered October 27, 1976, as, upon reargument, adhered to its prior determination which denied their motion to dismiss the complaint for lack of personal jurisdiction.
Order modified by adding thereto, after the words: "adheres to its original determination", the following: "as to defendant Grace Flitt and a hearing is ordered to be held on the issue whether proper service was made upon defendant David J. Flitt in accordance with the requirements of CPLR 308 (subd. 2)." As so modified, order affirmed insofar as appealed from, without costs or disbursements.
Neither appellant (a husband and wife, residing at the same address in Teaneck, New Jersey) denies that the summons and complaint were duly delivered to a person of suitable age and discretion at their residence. However, appellant David J. Flitt averred in his moving affidavit on the original motion that "(m)y wife and I have never received a copy of the summons and complaint in the mail" (emphasis in original). Although the answering affidavits in both the original motion and the motion for reargument in effect challenged appellant Grace Flitt to also aver that she had not received the summons in the mail, such averment was not forthcoming. As a result, the statement in the process server's affidavit of service that he had mailed the summons and complaint to Grace Flitt has not been effectively contradicted and Special Term properly denied the motion to dismiss as to her.
However, the sworn denial by appellant David J. Flitt of his receipt by mail of the summons and complaint requires a hearing to determine whether those papers had in fact been mailed to him. The affidavit of service, asserting mailing, is not conclusive once there has been a sworn denial of receipt. Plaintiff is then required to establish facts showing that the letter was indeed...
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