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Service of Process and Personal Jurisdiction

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  • Posted on: Dec 10 2021

By Jonathan H. Freiberger

There are two “components and constitutional predicates of personal jurisdiction.”  Keane v. Kamin, 94 N.Y.2d 263, 265 (1999).  “One component involves service of process, which implicates due process requirements of notice and opportunity to be heard.”  Id. (citations omitted).  Even though a defendant may be subject to the jurisdiction of the Court, dismissal may be sought “based on the claim that service was not properly effectuated.”  Id. (citations omitted).  “The other component of personal jurisdiction involves the power, or reach, of a court over a party, so as to enforce judicial decrees.”   Id. (citations omitted).   This requires a “constitutionally adequate connection between the defendant, the State and the action” (Id. (citations omitted)) and is beyond the scope of this article. 

In order for a court to exercise personal jurisdiction over a defendant in a litigation, among other things, defendant must be served with process (typically a summons).  In New York, service of process is usually performed by a process server and service is made pursuant to among others, CPLR Rules: 307 (State), 308 (natural person), 309 (infant, incompetent or conservatee), 310 (partnership), 310-a (limited partnership), 311 (corporation or governmental subdivision), 311-a (limited liability company) and 312 (court, board or commission), which govern how different individuals and entities may be served.  For example, under CPLR 308, personal service on an individual may be made by delivering the legal process: directly to the defendant (CPLR 308(1)); to someone of suitable age and discretion at the defendant’s “actual place of business, dwelling place or usual place of abode” and mailing a copy of the summons to the defendant’s last known residence or actual place of business (CPLR 308(2)); to an agent designated under CPLR 318 (CPLR 308(3)); and, where notwithstanding diligent, but unsuccessful, efforts to serve pursuant to CPLR 308(1) and (2), by affixing the process to the door at the defendant’s “actual place of business, dwelling place or usual place of abode within the state” and mailing a copy of the summons to the defendant at his/her/their actual place of business or last known residence (CPLR 308(4)). 

The failure to serve process in “strict compliance” with the “statutory methods,” “leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are thereby rendered null and void.”  Nationstar Mortgage, LLC v. Gayle, 191 A.D.3d 1002 (2nd Dep’t 2021) (citations omitted).  Accordingly, proof of proper service is of the utmost importance.

Once service of process is made, the process server typically prepares an affidavit of service.  CPLR 306 sets forth the information that must be provided in an affidavit of service, which includes: the papers served, the person served and the date of service (CPLR 306(a)); and,  when service is made by delivering the summons to an individual, a description of the person to whom the papers were delivered including, among other things, sex, skin color, hair color, age, weight, height and any other identifying features.  In addition, if service is made pursuant to CPLR 308(4), the dates, addresses and times of attempted service must be specified.  This is so because in order to demonstrate diligence, the process server must attempt to make service on the defendant “at different times and on different days when the defendant could reasonably be expected to be home.”  Bank of America, N.A. v. Batson, 176 A.D.3d 771 (2nd Dep’t 2019) (citations omitted).  A defendant can contest service of process on a motion to dismiss a complaint, inter alia, pursuant to CPLR  3211(a)(8) and/or CPLR 5015(a)(4)

On December 1, 2021, the Second Department decided three mortgage foreclosure actions addressing the sufficiency of service of process.

Wells Fargo Bank, N.A. v. Enitan

 In Wells Fargo Bank, N.A. v. Enitan, the borrower was purportedly served by “nail and mail” service pursuant to CPLR 308(4).  The court granted lender’s motion for a default judgment and for the appointment of a referee.  When the lender moved to confirm the referee’s report and for a judgment of foreclosure and sale, the borrower opposed the motion and cross-moved, inter alia, pursuant to CPLR 5015(a), to vacate the order granting a default judgment, and pursuant to CPLR 3211(a)(8), to dismiss the complaint for lack of personal jurisdiction over him.  The court granted lender’s motion and denied the cross-motion.  On appeal, the Second Department affirmed.  After discussing the relevant legal principals along the lines set forth supra, the Court stated:

A process server’s affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.  Although a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits.   The sworn denial of receipt of service must be a detailed and specific contradiction of the allegations in the process server’s affidavit.

Here, the process server’s affidavit of service, in which he attested that he attempted to serve the defendant on three prior occasions, constituted prima facie evidence of proper service pursuant to CPLR 308(4). In opposition and in support of his cross motion, the defendant’s unsupported averment that he did not reside at the subject property at the time of service was insufficient to rebut the presumption of proper service created by the process server’s affidavit.

(Citations, internal quotation marks and brackets omitted.) 

Bank of New York v. Dutan

In Bank of New York v. Dutan, an order of reference was entered upon borrower’s loan default.  Borrower opposed lender’s motion to confirm the referee’s report and for a default judgment of foreclosure and sale and cross-moved, inter alia, “pursuant to CPLR 5015(a)(3) and (4) to vacate the order of reference, and thereupon pursuant to CPLR 3211(a) … (8) to dismiss the complaint insofar as asserted against him for lack of … personal jurisdiction.”  Supreme court granted lender’s motion and denied borrower’s cross-motion.  On appeal, the Second Department reversed.

The Court noted that “[a]lthough a party moving to vacate a default must normally demonstrate a reasonable excuse and a meritorious defense, the movant is relieved of that obligation when lack of personal jurisdiction is asserted as the ground for vacatur.”  (Citation omitted.)  Further, while the process server’s affidavit typically “constitutes a prima facie showing of proper service, … when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing.”  (Citations omitted.)  Reversal was warranted because:

the affidavit of service reflects that the defendant was served pursuant to CPLR 308(2)….  The affidavit of service sets forth a detailed description of the person of suitable age and discretion, and states that the person of suitable age and discretion represented to the process server that the mortgaged premises was the defendant’s “dwelling house.”

The defendant rebutted the presumption of valid service by the submission of an affidavit in which he averred that the mortgaged premises was not his dwelling house or usual place of abode, and that his residence was located at a different specified address. He further averred that he had no knowledge of anyone being served on his behalf, and that he had not received a copy of the summons and complaint. Under these circumstances, a hearing on the issue of whether the defendant was properly served was warranted.

(Citation omitted.) 

Green Tree Servicing, LLC v. Frantzeskakis

             In Green Tree Servicing, LLC v. Frantzeskakis, supreme court, after a traverse hearing (a hearing to determine whether service of process was properly made), granted borrower’s motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction.  On lender’s appeal, the Second Department reversed and held that:

A minor discrepancy between the appearance of the person allegedly served and the description of the person served contained in the affidavit of service is generally insufficient to raise an issue of fact warranting a hearing. Further, the discrepancies must be substantiated by something more than a claim by the parties allegedly served that the descriptions of their appearances were incorrect. Here, notwithstanding alleged physical discrepancies, the process server averred that the person who answered the door, and on whom he served process, gave her name as Marina Frantzeskakis, and acknowledged she was the wife of the [borrower].

The process server’s affidavit of service constituted prima facie proof of proper service on the defendant via substituted service on his wife (see CPLR 308[2]). The affidavits submitted by the defendant failed to rebut the presumption of due service. The discrepancies alleged by the defendant between his wife’s appearance and the description of the person served contained in the process server’s affidavit were either too minor or insufficiently substantiated to warrant a hearing.

Accordingly, a hearing to determine the validity of service of process was not warranted under the circumstances….

Jonathan H. Freiberger is a partner and co-founder of Freiberger Haber LLP.

This article is for informational purposes and is not intended to be and should not be taken as legal advice.

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