Queensboro Leasing, Inc. v. Resnick
| Decision Date | 29 August 1974 |
| Citation | 78 Misc.2d 919,358 N.Y.S.2d 939 |
| Parties | QUEENSBORO LEASING, INC., Plaintiff, v. Jane RESNICK, Defendant. |
| Court | New York City Court |
Wallace L. Leinheardt, Kew Gardens, for plaintiff.
Jack R. Goldberg, Kew Gardens, for defendant.
Decision
This is a 'hearing on the traverse' pursuant to a court order involving the determination of the validity of the service of process. Whether or not the judgment entered against defendant after inquest should be vacated, depends upon this determination since, if service was invalid, the Court would not have personal jurisdiction over the defendant.
If the Court does not have such jurisdiction, then it is not necessary, as plaintiff argues, for the defendant to show that she has a meritorious defense. CPLR 317, relied upon by plaintiff in support of this argument, requires the showing of a meritorious defense where a person who seeks to defend an action 'did not personally receive notice of the summons in time to defend', but it applies to a situation where the person in fact was 'served' so that the Court has jurisdiction over him. See Dobkin v. Chapman, 21 N.Y.2d 490, 502--506, 289 N.Y.S.2d 161, 170--174, 236 N.E.2d 451, 457--460. The instant case is concerned with the question as to whether there is proof that defendant was served. Only upon a determination that defendant was served, would a showing of a meritorious defense be necessary upon an application to vacate the judgment or for the leave to defend.
The only witnesses who testified were plaintiff's attorney and defendant, the latter having been called as a witness on behalf of plaintiff which then proceeded to attack her credibility. See Kelly v. Wasserman, 5 N.Y.2d 425, 428, 185 N.Y.S.2d 538, 540--541, 158 N.E.2d 241, 242--243. Plaintiff's attorney had no personal knowledge of the service, although he offered in evidence the affidavit of service of the process server from the court file. This affidavit contains a statement by the process server indicating service of a summons and complaint upon defendant apparently in accordance with CPLR 308(4). Defendant admitted residing at the address in question at the time of service as set forth in the affidavit, but denied receiving a copy of the summons and complaint in the mail and denied seeing a copy thereof posted on her door as alleged in the affidavit. The Court observes that whether defendant actually received copies of the summons and complaint is not determinative of the issue before the Court; it must be determined whether process was served upon defendant in accordance with CPLR 308(4), thus giving the Court jurisdiction over the defendant. Dobkin v. Chapman, 21 N.Y.2d 490, 502--506, 289 N.Y.S.2d 161, 170--174, 236 N.E.2d 451, 457--460.
The only evidence presented indicating that process was served on defendant was the affidavit of service. When it was offered in evidence, over defendant's objection, the Court stated that it would be admitted in evidence only to show that it was filed. See CPLR 308(4) and CCA 402(b). Plaintiff strongly contended that it was admissible as 'prima facie evidence' of the truth of what it contains. While expressing doubt as to its admissibility for this purpose in light of the hearsay rule, the Court stated that it would reserve decision on this point.
The specific question presented is whether an affidavit of service of process is admissible in evidence as an exception to the hearsay rule, keeping in mind that a hearsay statement is no less hearsay because it is made under oath. Bookman v. Stegman, 105 N.Y. 621, 11 N.E. 376; Erdman v. Ingraham, 28 A.D.2d 5, 7, 280 N.Y.S.2d 865, 868; Weil v. Weil, 283 App.Div. 33, 36, 125 N.Y.S.2d 368, 370--371; Runde v. Meier, Sup., 95 N.Y.S.2d 812; see also People v. Walsh, 87 N.Y. 481, 485--486 stating 'Ex parte affidavits are evidence in judicial proceedings only as some law has declared them to be evidence, and they are not evidence of any facts stated in them unless some law makes them such.'
An examination of the New York statutes discloses that there is no statutory exception to the hearsay rule making affidavits of service of process admissible in evidence, although there are such statutory exceptions regarding other specified affidavits and certificates. Thus, Real Property Actions and Proceedings Law 1423 states that affidavits containing various statements relating to mortgage foreclosures--but not including service of process--are 'presumptive evidence of the matters of fact therein stated . . .'. CPLR Art. 45, entitled 'Evidence', refers to several kinds of certificates and affidavits which constitute 'prima facie evidence' of their contents (See CPLR 4522 and CPLR 4524 et seq.). None of these provisions, however, state that an affidavit of service of process is prima facie evidence of its contents. Plaintiff relies on one of these provisions, CPLR 4531, which declares that an affidavit regarding the service, posting or affixing of a 'notice' is 'prima facie evidence' thereof 'if the affiant is dead, insane or cannot be compelled with due diligence to attend at the trial.'
However, the question before this Court involves the commencement of an action and the obtaining of jurisdiction over the defendant by the service upon her of a summons; it does not merely involve the service of a notice. See CPLR 304, 305. A notice is not a summons. See Metcalf v. Cowburn, 44 A.D.2d 650, 352 N.Y.S.2d 740. The Court further observes that even if CPLR 4531 were applicable, there was no compliance with it in this case since the only testimony offered regarding the affiant was that of plaintiff's attorney who simply stated that he issued a subpoena directed to the affiant and the affiant was not present.
There being no statutory exception, the next field of inquiry is whether there is, or should be, a judicially created exception to the hearsay rule. Such exceptions have been created in instances where the proffered evidence has a high degree of probity or where it has been necessary to admit the evidence or lose the benefit of such evidence, and it is deemed that one or the other of these reasons is sufficient to render the evidence admissible without subjecting it to the salutary test of cross-examination. See V Wigmore on Evidence (3rd...
To continue reading
Request your trial
-
Shaw v. Shaw
...judgment should be vacated for a lack of jurisdiction (Pine v. Town of Hoosick, 56 A.D.2d 692, 391 N.Y.S.2d 738; Queensboro Leasing v. Resnick, 78 Misc.2d 919, 358 N.Y.S.2d 939). The existence of a meritorious defense only becomes significant in determining whether to open a default once it......
-
People ex rel. Walker v. New York State Bd. of Parole
...v. Lettenty, 48 Misc.2d 185, 186, 264 N.Y.S.2d 619 [NUNEZ, J.]; Siegel, N.Y.Practice, § 79, p. 87; but see Queensboro Leasing v. Resnick, 78 Misc.2d 919, 358 N.Y.S.2d 939) and we think the same rule should be applicable in parole revocation proceedings. Since such proceedings possess the at......
-
NRK Management Corp. v. Donahue
...73 A.D.2d 642, 422 N.Y.S.2d 748; Empire National Bank v. Judal Construction, 61 A.D.2d 789, 401 N.Y.S.2d 852; Queensboro Leasing Inc. v. Resnick, 78 Misc.2d 919, 358 N.Y.S.2d 939), could not do so. If there were nothing further, the court would have simply granted the However, plaintiff, in......
-
Iwu v. Estate Of Harold Mccummings
...[1986]; Salomon Bros. Realty Corp. v McFarland, 7 Misc 3d 1003A [2005]; Cornell v Amell, 132 Misc 2d 144 [1986]; Queensboro Leasing, Inc. v Resnick, 78 Misc 2d 919 [1974]; Weinstein, Korn & Miller, 2-317 New York Civil Practice: CPLR P 317.01). CPLR 317 provides that a person not served per......