Segarra v. Evans
| Decision Date | 13 February 2008 |
| Docket Number | 2007-02733. |
| Citation | 849 N.Y.S.2d 892,48 A.D.3d 543,2008 NY Slip Op 01325 |
| Parties | HIRAM SEGARRA et al., Respondents, v. MICHAEL EVANS et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law and the facts, with costs, and the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether proper service of process was made upon the defendants in accordance with the service and filing requirements of Vehicle and Traffic Law § 253 (2), and thereafter for a new determination of the defendants' motion.
The Supreme Court summarily concluded that the defendants had been properly served with process in accordance with the service and filing requirements of Vehicle and Traffic Law § 253 (2) and denied their motion, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint. Under the circumstances of this case, considering the affidavits of service, the unclaimed certified mailing envelopes, and the certificates of ordinary mailing, before the motion can be decided, a hearing is necessary in light of the defendants' sworn denials of receipt of process, in order to determine whether there was compliance with the service and filing requirements of the statute (see Balancio v Santorelli, 267 AD2d 189 [1999]; Jean-Laurent v Nicholas, 182 AD2d 805 [1992]).
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