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Martini v. Powers

Appellate Division of the Supreme Court of New York, Second Department
Nov 13, 1984
105 A.D.2d 731 (N.Y. App. Div. 1984)

Opinion

November 13, 1984

Appeal from the Supreme Court, Kings County (Hirsch, J.).


Order affirmed, without costs or disbursements.

The issue on the traverse hearing was whether defendant was personally served with a summons and complaint on Saturday, December 4, 1982, as asserted in the affidavit of service by plaintiffs' process server, or on Sunday, December 5, 1982, as asserted by defendant. The burden. of proof is upon plaintiffs to establish proper service by preponderating evidence ( Smid v Lombard, 83 A.D.2d 877). In finding that the evidence weighed closely on both sides and that plaintiffs failed to sustain their burden, Special Term based its decision upon the evidence presented as well as the credibility of the witnesses whom it had the opportunity to observe. Based upon our review of the record, we see no reason to disturb the determination of the hearing court ( Altman v Wallach, 104 A.D.2d 391; cf. Old Colony Furniture Co. v Fiegoli, 97 A.D.2d 790). Weinstein, J.P., Brown, Boyers and Eiber, JJ., concur.


Summaries of

Martini v. Powers

Appellate Division of the Supreme Court of New York, Second Department
Nov 13, 1984
105 A.D.2d 731 (N.Y. App. Div. 1984)
Case details for

Martini v. Powers

Case Details

Full title:HELEN MARTINI et al., Appellants, v. EDWARD W. POWERS, III, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 13, 1984

Citations

105 A.D.2d 731 (N.Y. App. Div. 1984)

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