Opinion
July 15, 1996
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that the order is reversed, on the law, with costs, the defendant's motion is denied, and the complaint is reinstated.
In this action the plaintiffs attempted to serve the defendant by "affix and mail" service pursuant to CPLR 308 (4). The sole issue raised at the hearing to determine the validity of the service of process was whether a copy of the summons and complaint was mailed to the defendant. In sustaining the challenge to the validity of the service of process and granting the defendant's motion to dismiss the complaint based on lack of jurisdiction, the court concluded that there was "no competent evidence" that the summons and complaint was mailed. We disagree and, therefore, reverse.
At the hearing, the plaintiffs had to prove proper service by a preponderance of the evidence (see, Kanner v. Gerber, 197 A.D.2d 673; Matter of Griffin v. Griffin, 215 A.D.2d 386). Although the plaintiffs' process server could not recall whether he had personally mailed the summons and complaint to the defendant three years earlier, this testimony enhanced his credibility (see, Federal Deposit Ins. Co. v. Evangelista, 226 A.D.2d 208; Black v. Pappalardo, 132 A.D.2d 640; Rowlan v. Brooklyn Jewish Hosp., 100 A.D.2d 844, 845).
Additionally, the process server's testimony established the existence of an office procedure, which was followed in the regular course of business, showing that the summons and complaint was duly addressed and mailed, and raising a presumption that it was mailed (see, Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829; Prince, Richardson on Evidence § 3-128, at 77 [Farrell 11th ed]). Since the defendant failed to show that the "routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed", his mere denial of receipt was insufficient to rebut the presumption of mailing (Nassau Ins. Co. v. Murray, supra, at 830). In any event, we note that service by mail is complete upon mailing regardless of delivery (see, De Forte v. Doctors Hosp., 66 A.D.2d 792). Therefore, the plaintiffs proved by a preponderance of the evidence that a copy of the summons and complaint was mailed to the defendant (see, Federal Deposit Ins. Co. v Evangelista, supra; Black v. Pappalardo, supra; Rowlan v. Brooklyn Jewish Hosp., supra). Mangano, P.J., Thompson, Florio, McGinity and Luciano, JJ., concur.