Defendant Claiming Non-Service Challenged Default Judgment

Was Affidavit of Deceased Process Server Admissible/Dispositive?

First American Investment Company obtained a default judgment against Orlando Fabian in Civil Court in the Bronx. Fabian moved to vacate the judgment on the ground he had not been served with process. The Court ordered a traverse hearing to determine whether or not Fabian had been served.

Before the commencement of testimony, the Court heard two applications by the parties: First American’s application to cancel the traverse hearing in light of the process server's death, and Fabian’s application to exclude the now-deceased process server's affidavit of service that was the impetus of the traverse hearing.

By counsel's affirmation, First American asserted that "a traverse hearing can no longer be held," because the process server whose service was being challenged— William Morrison— had died. Instead of proceeding to a traverse hearing, First American posited that Morrison's death rendered his affidavit of service conclusive prima facie evidence of proper service of the summons and complaint in this action.

The CPLR provides 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 did not dispute that Morrison was dead. Consequently, his affidavit was prima facie evidence of service as set forth therein. The Court noted the prima facie effect of a process server's affidavit in ordering the traverse hearing. However, the process server's death did not, by itself, preclude a traverse hearing because such prima facie evidence of service might be rebutted. Here, the Court had previously found a basis to question the alleged service of the summons and complaint by Morrison. Those questions were not washed away by the fact that Morrison subsequently died. The Court declined to revisit the basis to ask those questions. First American’s application to cancel the traverse hearing was denied.

Fabian’s application to exclude Mr. Morrison's affidavit of service from evidence was also denied. The parties did not dispute that Morrison was dead. The CPLR specifically addressed what to do with an affidavit of service by a now-dead process server. However, where, as here, the process server was deceased at the time of the motion, his affidavit of service, if not conclusory and devoid of sufficient detail, was to be admitted in evidence as prima facie proof of service. The issue before the Court was not whether Morrison's affidavit was conclusory or lacking in sufficient detail, but whether that detail was credible. Fabian’s moving papers conflicted with Morrison's affidavit of service and created a question of fact and credibility that went to the weight of the affidavit in the circumstance, not its admissibility. Fabian’s application to exclude Morrison's affidavit was also denied.

The burden of proof is on the party asserting jurisdiction. As a consequence, once a traverse hearing is ordered, the process server's appearance and testimony is typically essential. However, when the process server died before a traverse hearing could be held, but executed a facially-sufficient affidavit of service, the remedy was to shift the burden in a traverse hearing to the defendant. Doing so preserved defendants' rights to challenge improper service while also protecting plaintiffs from defendants taking advantage of a process server's death to vacate otherwise valid judgments. That was particularly important where, as here, the service occurred beyond the record-retention periods required for process servers and their employers in New York, limiting the availability of corroborating information and creating a unique situation where burden-shifting was appropriate. Applying burden-shifting, the Court found that Fabian met his burden in challenging service.

Fabian testified on his own behalf, as did his co-resident mother, and both were cross-examined by First-American. Both testified that no one matching the description of the individual allegedly receiving service resided with them at Fabian’s residence at the alleged time of service; neither of them were home at the alleged time of service; and they did not receive a copy of the summons and complaint in the mail. They denied any difficulties with receiving other mail at the relevant time

Fabian, who was the only male living in his residence at the relevant time, testified credibly that his physical appearance was markedly different than the individual allegedly served. Fabian did not call witnesses of its own, and relied upon the affidavit of service. On balance, the evidence before the Court favored Fabian. Having sustained Fabian’s traverse, the Court did not have personal jurisdiction over him, necessitating dismissal.

Fabian’s traverse was granted and the judgment against him was vacated.

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