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Court Finds Nail and Mail Service to Last Known Address Insufficient, No Traverse Hearing Necessary

Generally, where a defendant rebuts an affidavit of service with a sworn denial of service, the court will order a traverse hearing at which the plaintiff must establish jurisdiction by a preponderance of the evidence. In 215 African & Hispanic American Realty of NY, LLC v Air Chef[1] the court decided that a traverse hearing was not needed.

In this case, judgment debtor Mr. Aggarwal moved to vacate a default judgment and dismiss the complaint for lack of jurisdiction based on improper service. The plaintiff claimed conspicuous place service with follow-up mailing (or as it is more commonly known, "nail and mail") under CPLR § 308(4).

The court seemed to find Mr. Aggarwal's affidavit denying service compelling. The affidavit set forth six specific facts strongly suggesting that service was improper, which the court detailed in its opinion:

  • The defendant Mr. Aggarwal stated he had not lived at the Woodhaven address on the affidavit of service for ten years;
  • Mr. Aggarwal offered NYC ACRIS[2] records which showed the property at the address served was owned by someone else;
  • The defendant denied any recollection of the neighbor the process server claimed to have spoken to;
  • He submitted a set of utility bills showed he lived at a different address at the time service was allegedly made;
  • He also submitted his license for the same period, also showing he lived at a different address;
  • Mr. Aggarwal also stated in his affidavit that if the plaintiff obtained the Woodhaven address from a credit/lease application he had completed in 1996, it was unreasonable to think defendant had not changed his address since then.

Acknowledging that it could send the case to a traverse hearing, the court nonetheless declined to do so, stating "the undisputed facts in the case at bar compel dismissal. Here, no traverse hearing is needed in light of plaintiff's failure to refute Aggarwal's claim that the Woodhaven address was not his actual dwelling place or usual place of abode. Plaintiff's service of the summons and complaint at defendant's last known address is insufficient as a matter of law."

In so concluding, the court relied upon Feinstein v. Bergner[3], 48 NY2d 234 [1979], in which the New York Court of Appeals held that, under CPLR 308(4), the mailing step of service may be made at defendant's last known address, but the affixing component must be made at defendant's actual dwelling place or usual place of abode.

Accordingly, the judgment was vacated and the complaint dismissed based upon the plaintiff's failure to properly serve the defendant within 120 days of filing the complaint, as required by CPLR § 306-b.

[1] 215 African & Hispanic American Realty of NY, LLC v Air Chef, Sup Ct, New York County, September 4, 2012, Shulman, J., Index No. 117923-09.

[2] ACRIS is a searchable database of New York City property records that is publicly available.

[3] Feinstein v. Bergner, 48 NY2d 234 [1979].