In New York, defendants can contest service and move to dismiss a lawsuit for failure to serve. When there is a question regarding whether the defendant was properly served, courts will order a traverse hearing–an evidentiary hearing regarding service of the summons and complaint on the defendant.
Under 22 NYCRR § 208.29, whenever the court has scheduled a traverse hearing to determine whether process was served validly and timely upon a party, and where a process server will testify as to the service, the process sever shall be required to bring to the hearing all records in the possession of the process server relating to the matter at issue.
Traverse hearings can be an up-hill battle for defendants contesting service. This is because process servers are licensed professional who are supposed to keep meticulous records documenting how defendants were served, and the affidavit of service is prima facie proof of service. The service log, affidavits of service, and process server testimony is almost impossible to overcome for defendants contesting service in a traverse hearing.
Despite this difficult burden, Moore Kuehn triumphed in a recent Kings County traverse hearing to determine proper service under CPLR 308 (4), “nail and mail” service. This traverse hearing would determine whether defendants would remain liable for $500,000 default judgment. The traverse hearing was ordered by the Appellate Division for the Second Judicial Department after briefs were filed.
In September 2017, Moore Kuehn handled the traverse hearing over two days in Kings County. The process server testified as well as both defendants and hundreds of pages of documents were offered as exhibits and evidence. Plaintiff was adamant service was proper introducing several mailings to defendant’s home and pictures of defendant’s door with process taped to it.
The Referee Miriam P. Sunshine ruled in favor of Moore Kuehn’s clients, essentially dismissing the lawsuit with prejudice. The Referee found “the evidence adduced at the hearing demonstrates that plaintiff failed to show any due diligence done to ascertain where defendants lived or worked. Accordingly, plaintiff failed to carry its burden of demonstrating by a preponderance of the evidence that service was properly made. Based on the foregoing, it is the finding of the referee that the purported service on defendants, were not proper.”
The court’s ruling essentially dismissed all claims with prejudice against Moore Kuehn’s clients. In doing so, a judgment against the clients of over $500,000 was vacated. Attorney Fletcher Moore handled the traverse hearing.