Opinion
October 21, 1985
Appeal from the Supreme Court, Suffolk County (Gowan, J.).
Order reversed, without costs or disbursements, and matter remitted to Special Term for a new traverse hearing and determination.
Upon completion of testimony at a traverse hearing, the court found in the plaintiff wife's favor, ruling that in view of "the testimony of all of the witnesses and considering that the defendant Ralston Powell has the burden of establishing by a preponderance of the credible evidence that in fact service * * * was not made, the Court must dismiss the proceeding on the grounds that the defendant * * * has not carried the burden of proof and, in fact, has not established to the Court's satisfaction that in fact he was not the person served * * * [as] asserted * * * in the affidavit of service". This was error. It is well established that it is the plaintiff who bears the ultimate burden of proving by preponderating evidence that jurisdiction over the defendant was obtained (see, Saratoga Harness Racing Assn. v Moss, 26 A.D.2d 486, affd 20 N.Y.2d 733; Brooklyn Union Gas Co. v Arrao, 100 A.D.2d 949; Jacobs v Zurich Ins. Co., 53 A.D.2d 524). Under the circumstances of this case, since the court failed to apply the proper standard in weighing the evidence, a new traverse hearing is ordered. Lazer, J.P., O'Connor, Niehoff and Kooper, JJ., concur.