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Mitchell v. Mendez

Appellate Division of the Supreme Court of New York, Second Department
Jan 22, 1985
107 A.D.2d 737 (N.Y. App. Div. 1985)

Opinion

January 22, 1985

Appeal from the Supreme Court, Nassau County (Roncallo, J.).


Plaintiff is awarded one bill of costs.

Special Term should have granted that branch of plaintiff's motion which sought renewal. Plaintiff had no opportunity in his first motion to respond to the contention respondent first raised in his reply affirmation that service of the summons and complaint in action No. 2 was defective.

The court nevertheless granted respondent relief to the extent of ordering a traverse hearing. Plaintiff was entitled to present arguments in support of his position that service was valid and that no traverse hearing was required ( Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865).

Plaintiff was also entitled to an order striking respondent's first and second affirmative defenses. Plaintiff presented an affidavit of service made pursuant to CPLR 308 (subd 4). The affidavit stated that the process server had made attempts to serve respondent (or a person of suitable age and discretion thereat) at his residence on three different days at different hours of the day. Such an affidavit is sufficient proof of service absent any indication to the contrary, such as allegations that respondent never received the summons and complaint, or that he could not be expected to be home during any of the attempts ( Lembo Sons v. Robinson, 99 A.D.2d 872; Reed v Domenech, 90 A.D.2d 844). Unlike the attempts in Reed v. Domenech ( supra), the attempts here were made both on weekdays and on a Saturday. Respondent did not claim that he worked Saturdays. He made no showing of any other reasonable means (such as knowledge of respondent's place of employment) whereby plaintiff could have significantly increased his chances of successful personal service. Respondent also does not challenge the accuracy of the allegations in the affidavit of service. Indeed, the affidavit attacking the service is made by the attorney for the respondent rather than the respondent.

A hearing should only be ordered if the papers raise issues of fact. Respondent has raised none and has had the opportunity to do so in response to that branch of plaintiff's motion which sought to strike his first and second affirmative defenses. The affirmative defense of defective service of the summons should therefore be stricken and no traverse hearing should be held.

There is also no issue of fact with regard to the Statute of Limitations. The summons and complaint in action No. 2 were delivered to the Sheriff and were timely served pursuant to CPLR 203 (subd [b], par 5, cl [i]). Thus, that affirmative defense should be stricken as well. Lazer, J.P., Bracken, Rubin and Eiber, JJ., concur.


Summaries of

Mitchell v. Mendez

Appellate Division of the Supreme Court of New York, Second Department
Jan 22, 1985
107 A.D.2d 737 (N.Y. App. Div. 1985)
Case details for

Mitchell v. Mendez

Case Details

Full title:WILLIAM P. MITCHELL, Appellant, v. ALFONSO MENDEZ, Respondent. (Action No…

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

Date published: Jan 22, 1985

Citations

107 A.D.2d 737 (N.Y. App. Div. 1985)

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