First Am. Inv. Co. v. Fabian, 2022-50389

CourtNew York Civil Court
Writing for the CourtHon. Jeffrey S. Zellan, J.C.C.
PartiesFirst American Investment Company, LLC, A/A/O Citibank, Plaintiff, v. Orlando Fabian, Defendant.
Decision Date26 April 2022
Docket Number2022-50389,Index CV-88465-07/BX

First American Investment Company, LLC, A/A/O Citibank, Plaintiff,
v.

Orlando Fabian, Defendant.

No. 2022-50389

Index No. CV-88465-07/BX

Civil Court of The City of New York, Bronx County

April 26, 2022


Unpublished Opinion

Hon. Jeffrey S. Zellan, J.C.C.

The parties appeared on April 14, 2022 for a traverse hearing pursuant to the Court's decision and order dated October 22, 2021 (Gomez, J.) (the "October Decision"). Upon the evidence and testimony adduced at the hearing, the decision and order of the Court is as follows:

Defendant's traverse is granted, the judgment vacated, and this action dismissed.

Before the commencement of testimony, the Court heard two applications by the parties: plaintiff's application to cancel the instant traverse hearing in light of the subject process server's death, and defendant's application to exclude the now-deceased process server's affidavit of service that was the impetus of the instant traverse hearing. The Court denied both applications on the record, and explains both decisions more fully herein in addition to addressing the merits of defendant's instant motion following the traverse hearing.

Plaintiff's Application to Cancel the Traverse Hearing

By its counsel's supplemental affirmation dated January 13, 2022, plaintiff asserted that "a traverse hearing can no longer be held," because the process server whose service was being challenged - William Morrison - died on January 16, 2017. Plaintiff's Supplemental Aff., ¶ 5. Instead of proceeding to a traverse hearing, plaintiff posits that Mr. Morrison's 2017 death renders his December 6, 2007 affidavit of service conclusive prima facie evidence of proper service of the summons and complaint in this action. As plaintiff correctly notes, CPLR 4537 states that "[a]n affidavit by a person who served, posted or affixed a notice, showing such service, posting or affixing is prima facie evidence of the service, posting or affixing if the affiant is dead, mentally ill or cannot be compelled with due diligence to attend at the trial." The parties do not dispute that Mr. Morrison is dead, consequently his affidavit is prima facie evidence of service pursuant to CPLR 4537. See, Cobble Hillbillies, LLC v. Interior Design, 4 Misc.3d 987, 989 (Civ. Ct., Kings Co. 2004) (discussing impact of CPLR 4537 upon admissibility of process server's affidavit). Indeed, the court noted the prima facie effect of a process server's affidavit pursuant to CPLR 308(2) in ordering the instant traverse hearing. October Decision, at 3. However, a process server's death does not, by itself, preclude a traverse hearing. However, such prima facie evidence of service may be rebutted. Smith v Reid, 134 NY 568, 571 (1892) (collecting cases and finding that even though a "recital [of service] was prima facie evidence of the truth of that fact it was not conclusive, and the defendant was at liberty to show that service of the summons was not in fact made.") (italics in original). Here, the Court has previously found a basis to question the alleged service of the summons and complaint by Mr. Morrison. October Decision, at 3-4. Those questions are not washed away by the fact that Mr. Morrison has died, and the Court declines to revisit the basis to ask those questions. [1] See, e.g., Capital Resources Corp. v. Auguste, 266 A.D.2d 330, 330 (2d Dept. 1999) (affirming denial of motion to vacate following traverse hearing after process server's death). Accordingly, plaintiff's application to cancel the traverse hearing is denied.

Defendant's Application to...

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