Turner v. Sideris
| Decision Date | 14 October 2020 |
| Docket Number | Index No. 9565/15,2019–04413 |
| Parties | Kim TURNER, et al., Appellants, v. George SIDERIS, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
187 A.D.3d 963
130 N.Y.S.3d 703 (Mem)
Kim TURNER, et al., Appellants,
v.
George SIDERIS, etc., Respondent.
2019–04413
Index No. 9565/15
Supreme Court, Appellate Division, Second Department, New York.
Argued—February 20, 2020
October 14, 2020
Berkowitz & Weitz, P.C., New York, N.Y. (Andrew D. Weitz of counsel), for appellants.
Chartwell Law Offices, LLP, New York, N.Y. (Jack Gross of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., JOHN M. LEVENTHAL, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered February 11, 2019. The order, after a hearing to determine the validity of service of process, granted that branch of the defendant's cross motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction.
ORDERED that the order is affirmed, with costs.
The plaintiffs commenced this action, among other things, to recover damages for personal injuries. The defendant cross-moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. Following a hearing to determine the validity of service of process, the Supreme Court granted that
branch of the defendant's cross motion. The plaintiffs appeal.
Contrary to the plaintiffs' contention, a hearing was necessary to determine whether service was validly effected. Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, thus, gives rise to a presumption of proper service (see HMC Assets, LLC v. Dhanani, 173 A.D.3d 700, 701, 102 N.Y.S.3d 655 ). However, a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit generally rebuts the presumption of proper service and necessitates a hearing (see Federal Natl. Mtge. Assn. v. Alverado, 167 A.D.3d 987, 988, 90 N.Y.S.3d 308 ;...
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OneWest Bank FSB v. Perla
...that personal jurisdiction is lacking (see Green Tree Servicing, LLC v Frantzeskakis, A.D.3d, 2021 NY Slip Op 06675 [2d Dept]; Turner v Sideris, 187 A.D.3d 963; HSBC Bank N.A. v Sprei, 180 A.D.3d 763). As my dissenting colleague correctly notes, the cases in which this Court addressed the i......
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OneWest Bank FSB v. Perla
...necessary to determine the motion (see Green Tree Servicing, LLC v. Frantzeskakis, 200 A.D.3d 654, 154 N.Y.S.3d 864 ; Turner v. Sideris, 187 A.D.3d 963, 130 N.Y.S.3d 703 ; HSBC Bank USA, N.A. v. Sprei, 180 A.D.3d 763, 115 N.Y.S.3d 902 ; Mileski v. MSC Indus. Direct Co., Inc., 159 A.D.3d 690......
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U.S. Bank Nat'l Ass'n v. Smith
...a prima facie case as to the method of service and, thus, gives rise to a presumption of proper service" ( Turner v. Sideris, 187 A.D.3d 963, 963, 130 N.Y.S.3d 703 ; see U.S. Bank N.A. v. Rauff, 205 A.D.3d 963, 169 N.Y.S.3d 342 ). " ‘To be entitled to vacatur of a default judgment and dismi......
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