Preview
FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E
NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
U.S.BANK NATIONAL AS Index No.32685/2017E
ASSOCIATION, |
TRUSTEE,
Plaintiff,
- against-
I
I
I
I
EGERTON WALKER, ET AL,
Defendants.
DEFENDANT' MEMORANDUM OF LAW
S
Michael Kennedy Karlson
Attorney for Defendant
(Egerton Wa1ker)
5030 Broadway, Suite 813
New York, New York 10034
(212) 569-9597
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ARGUMENT:
POINT I:
IN THE ABSENCE OF JURISDICTION THERE IS NO DEFAULT TO
VACATE
AND THE JUDGMENT IS A NULLITY.
Lack of personal jurisdiction is grounds to vacate
a Judgment. As Professor Siegel writes:
"More frequently it's based on a lack
of personal jurisdiction, but seldom
is CPLR 5015(a) (4) cited. The reason
is that lack of jurisdiction is so
deep a defect, and so obviously a
basis for vacatur, that a statute
authorizing the vacatur on this
ground is like the proverbial fifth
wheel. For the same reason the
jurisdictional defect permits the
vacatur motion without a time limit:
the judgment in this instance is
theoretically void and the order
sought under CPLR 5015(a) (4) is not
what makes it so; the order merely
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declares it to be so, cancelling of
record a judgment that has had the
presumption to stand on the books
invitation."
without a jurisdictional
4th
Siegel, New York Practice, Ed.,
§430, page 730, footnote omitted.
Professor Siegel continues:
If the motion is based on paragraph 4
- -
alone want of jurisdiction no
affidavit of merits is necessary
because "[s]uch a judgment is a
nullity, irrespective of the question
of merit". [FN 3: Shaw v. Shaw 97
(2d
A.D.2d 403, 467 N.Y.S.2d 231 (2 oep t
1983). The U.S. Supreme Court has so
held even as a matter of federal
constitutional law. See Peralta v.
Heights Medical Center, Inc., 485 U.S.
80, 108 S.Ct. 896, 99 L.Ed.2d 75
(1988)] Indeed it would not even be
proper to make the vacatur of the
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judgment conditional, such as by
requiring the defendant to appear and
defend the case on the merits or to
waive a defense, such as the statute
of limitations. The Court in such an
instance is "without authority to take
dismiss."
any action other than to [FN
4: Community State Bank v. Haakonson,
94 A.D.2d 838, I 463 N.Y.S.2d 105 (3d
1983)]"
Dep't Siegel, New York
4"
Practice, Ed., §430, page 730,
citing Shaw v. Shaw 97 A.D.2d
~ ~ 403, 467
(2d Dep'
N.Y.S.2d
~ ~ 231 (2 Dep't 1983); Peralta
v. Heights Medical Center, Inc., 485
U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75
(1988); Community State Bank v.
Haakonson, 94 A.D.2d
~ 838, 463 N.Y.S.2d ~
Dep'
105 (3d Dep't 1983)
Essentially, the time to respond to the Summons and
Complaint does not even truly begin to run in the
absence of proper Service of Process. It cannot be said
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that the time has expired if the time has not even
begun.
Nor does Service of various other documents
establish jurisdiction. Only Service of the Summons
establishes jurisdiction. Neither does Plaintiff meet
its obligation to establish jurisdiction merely by
raising awareness of the pendency of an action. In
County of Nassau v. Letosky the Appellate Division,
Second Department, held:
"Although the plaintiff notes that Letosky did
not deny receipt of the summons and complaint
affixed to the door of her residence, '[w]hen
the requirements for service of process have
not been met, it is irrelevant that defendant
documents'
may have actually received the
(Raschel v. Rish, 69 NY2 694, 697 [1986]; see
Hillary v. Grace, 213 AD2d 450 [1995]; Dewey v.
Hillcrest Gen. Hosp., 201 AD2d 609 [1994]). .
Accordingly Letosky's motion to dismiss the
complaint insofar as asserted against her for
lack of personal jurisdiction was properly
granted."
(2nd
County of Nassau v. Letosky, 34 AD3d 414
Dept. 2007) citing Raschel v. Rish, 69 NY2 694,
697 [1986]; Hillary v. Grace, 213 AD2d 450
[1995]; Dewey v. Hillcrest Gen. Hosp., 201 AD2d
609 [1994].
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Service of process is a constitutional
requirement necessary for the court to exercise
jurisdiction over a party. Patrician Plastic Corp. ~ v.
Bernadel Realty Corp., ., 25 N.Y.2d 599, 607, 307 N.Y.S.2d
("
868, 875 (1970) ("The short of it is that process
serves to subject a person to jurisdiction in an action
pending in a particular court and to give notice of
proceedings."
the (citations omitted)). Moreover, the
Court of Appeals has held that the statutory
requirements for personal service mandate strict
compliance. Dorfman v. Leidner, 76 N.Y.2d 956, 958, 563
("
N.Y.S.2d 723, 725 (2000) ("Service of process is
carefully prescribed by the Legislature . . . .
Regularity of process, certainty and reliability for
all litigants and for the courts are highly desirable
objectives to avoid generating collateral disputes.
These objects are served by adherence to the statute .
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. . ."). When a party is not properly served, the
court lacks jurisdiction over that party. See, e.g.,
Keane v. Kamin, 94 NY2d 263, 265, 701 N.Y.S.2d
~ ~ ~ 698,
("
699 (1999) ("Typically, a defendant who is otherwise
subject to a court's jurisdiction, may seek dismissal
based on the claim that service was not properly
effectuated."). And "therefore all further proceedings
nullities."
. . . [are] absolute Mayers v. Cadman
Towers, 89 A.D.2d 844, 845, 453 N.Y.S.2d 25, 27 (App.
Div. 2d Dep't 1982). ~
An application pursuant to CPLR Rule 5015(a) (4) is
brought specifically upon the ground of lack of
jurisdiction to render the judgment or order. Where the
court'
application for vacatur is grounded upon the court's
lack of personal jurisdiction due to improper service
of process, the movant need not show either a
reasonable excuse nor a meritorious defense. Prudence
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v. Wright, 94 .D3d
A.D.3d 1073, 943 ..S2d
N.Y.S.2d 185, 186 (App.
Div. 2d Dep't 2012); Toyota Motor Credit Corp. . v. Lam,
93 A.D.3d 713, 713-14, 939 N.Y.S.2d 869, 870 (App.
Div. 2d Dep't 2012); Deutsche Bank Nat'l Trust Co. v.
Pestano, 71A.D.3d 1074, 1075, 899 N.Y.S.2d 269, 271
Dep'
(App. Div. 2d Dep't 2010). This is because it is
"axiomatic"
that "the failure to serve process in an
action leaves the court without personal jurisdiction
over the defendant, and all subsequent proceedings are
void."
thereby rendered null and Hossain v. Fab Cab
Corp., ., 57 A.D.3d 484, 485, 868 N.Y.S.2d 746 (App. Div.
Dep'
2d Dep't 2008). . Chase Manhattan Bank, N.A., v. Carlson,
113 A.D.2d ~ 734, 493 N.Y.S.2d
~ . 339 (App. Div. 2d Dep't
("
1985) ("Absent proper service of a summons, a default
judgment is deemed a nullity and once it is shown that
proper service was not effected the judgment must be
unconditionally vacated."). .~
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POINT II
TRAVERSE IS REQUIRED
Defendant unequivocally refuted the Affidavit of
Service. Once the Affidavit of Service has been
refuted, a Traverse Hearing is required to ascertain
the truth. Skyline Agency v. Coppotelli, Inc., 117
(2nd
A.D.2d
~ ~ 135, 139 Dept., 1986). ~ "It is well
established that the burden of proving that personal
jurisdiction was acquired rests at all times upon the
plaintiff in the action (Green Point Sav. Bank v
Taylor, 92 A.D.2d 910; Bernardo v Barrett 87 A.D.2d
aff' 1006)."
832, aff'd 57 N.Y.2d ~ Skyline Agency v.
(2nd
Coppotelli, Inc., 117 A.D.2d 135, 139 Dept., 1986)
citing Green Point Sav. Bank v Taylor, 92 A.D.2d 910;
aff'
Bernardo v Barrett, 87 A.D.2d 832, aff'd 57 N.Y.2d
1006). .
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In resolving the jurisdictional question pursuant
to CPLR Rule 5015(a) (4), the court must first determine
whether the plaintiff effectuated proper service of
process. Marable v. Williams, 278 A.D.2d at 459, 718
("
N.Y.S.2d at 401 ("Whether or not service was properly
effectuated is a threshold issue to be determined
before consideration of discretionary relief pursuant
to C.P.L.R. 5015(a) (1)."); Cipriano v. Hank, 197 A.D.2d
Dep'
295, 298, 610 N.Y.S.2d 523, 520 (App. Div. 1st Dep't
("
1994) ("Defendant's lack of a reasonable excuse . . .
is obviated if the court is without personal
jurisdiction over defendant, and all subsequent
proceedings would be rendered null and void.")
(citation omitted); Anello v. Barry, , 149 A.D.2d 640,
641, 540 N.Y.S.2d 460, 461 (App. Div. 2d Dep't 1989)
("[T]he court erred in vacating the default as
excusable pursuant to C.P.L.R. 5015(a) (1) without
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initially resolving the jurisdictional issue under
C.P.L.R. 5015(a) (4).")..") (citation omitted) .
In order to rebut the presumption of proper
service the defendant must personally contest the
service on motion. Walkes v. Benoitr 257 A.D.2d 508,
508, 684 N.Y.S.2d 533, 534 (1st Dep't 1999). ~ In
defendant's moving papers, he or she must either
submit a sworn denial of service or swear to specific
facts to rebut the process server's affidavit. Puco v.
DeFeo, 296 A.D.2d 571, 571, 745 N.Y.S.2d 719, 719-20
(App. Div. 2d Dep't 2002); Parker v. Top Homes, Inc.,
58 A.D.3d 817, I 873 N.Y.S.2d 112 (24pp. Div. 2d Dep't
2009) (finding that the defendant "failed to submit a
sworn denial of service or specific statements to
servers'
rebut the statements in the process
affidavits") (emphasis added); Johnson v. Deas, 32
A.D.3d 253, 819 N.Y.S.2d 751 (App. Div. 1st Dep't
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2006). (remanding to hold a traverse hearing, stating
that "the absence of defendant's sworn denial of
service is not fatal.") ~
Thus, where a defendant provides a sworn denial of
service, and thus rebuts the process server's
affidavit of service, the defendant is entitled to a
traverse hearing, at which the plaintiff must prove
jurisdiction by a preponderance of evidence. See,
e.g., Elm Management Corp. . v. Sprung, , 33 A.D.3d 753,
Dep'
754-55, 823 N.Y.S.2d 187, 188-89 (App. Div. 2d Dep't
2006) (reversing the denial of the defendant's motion
to dismiss for lack of personal jurisdiction by reason
of improper service of process, and holding that the
defendant's sworn denial of receipt of process was
sufficient to rebut the plaintiff's affidavit of
service and the plaintiff, therefore, was required to
establish personal jurisdiction by a preponderance of
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the evidence at a hearing); Dime Savings Bank v.
Steinman, 206 A.D.2d 404, 613 N.Y.S.2d 945 (App. Div.
2d Dep't 1994) (remanding for a traverse hearing,
stating: "The sworn denials of the appellants that they
had been served with process pursuant to CPLR 308(2),
as alleged by the plaintiff's process server, requires
a hearing to determine whether they were in fact
properly served . . . ."). See also, e.g., Matter of
TNT Petroleum, Inc. v. Sea Petroleum, Inc., 40 A.D.3d
771, 771-72, 833 N.Y.S.2d 906, 907 (App. Div. 2d Dep't
2007); Schwerner v. Saqonas, 28 A.D.3d 468, 811
5' ~N'
N.Y.S.2d 595 (JNpp. Div. . 2d Dep't 2006); Kingsland
Group, Inc. v. Pose, 296 A.D.2d 440, 440-41, 744
N.Y.S.2d 715, 716 (App. ~ Div. 2d Dep't 2002); Balancio
v. Santorelli, 267 A.D.2d 189, 699 N.Y.S.2d 312 (2¼pp.
Div. 2d Dep't 1999); Long Island Savings Bank v.
Meliso, 229 A.D.2d 478, 645 N.Y.S.2d 519, 520 (2½pp.
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Dep'
Div. 2d Dep't 1996); and Micalizzi v. Gomes, 204 A.D.2d
Dep'
284, 614 N.Y.S.2d 155 (App. Div. 2d t 1994). .
CONCLUSION
Defendant'
For all of the reasons set forth above Defendant's
motion should be granted in it's entirety.
WHEREFORE, Defendant Egerton Walker respectfully requests that this Action be
dismissed in itsentirety, the notice of pendency be vacatedand that Defendant be granted such
other and finisher relief as may be found to be just and proper under the circumstances.
State of New York
County of New York
.
Dated: Februa1y 12, 2018
Michael Kennedy Karlson
Attorney for Defendant
(Egerton Walker)
5030 Broadway, Suite 813
New York, NY 10034
(212) 569-9597
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Preview
FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX U.S.BANK NATIONAL AS Index No.32685/2017E ASSOCIATION, | TRUSTEE, Plaintiff, - against- I I I I EGERTON WALKER, ET AL, Defendants. DEFENDANT' MEMORANDUM OF LAW S Michael Kennedy Karlson Attorney for Defendant (Egerton Wa1ker) 5030 Broadway, Suite 813 New York, New York 10034 (212) 569-9597 1 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 ARGUMENT: POINT I: IN THE ABSENCE OF JURISDICTION THERE IS NO DEFAULT TO VACATE AND THE JUDGMENT IS A NULLITY. Lack of personal jurisdiction is grounds to vacate a Judgment. As Professor Siegel writes: "More frequently it's based on a lack of personal jurisdiction, but seldom is CPLR 5015(a) (4) cited. The reason is that lack of jurisdiction is so deep a defect, and so obviously a basis for vacatur, that a statute authorizing the vacatur on this ground is like the proverbial fifth wheel. For the same reason the jurisdictional defect permits the vacatur motion without a time limit: the judgment in this instance is theoretically void and the order sought under CPLR 5015(a) (4) is not what makes it so; the order merely Page -1- 2 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 declares it to be so, cancelling of record a judgment that has had the presumption to stand on the books invitation." without a jurisdictional 4th Siegel, New York Practice, Ed., §430, page 730, footnote omitted. Professor Siegel continues: If the motion is based on paragraph 4 - - alone want of jurisdiction no affidavit of merits is necessary because "[s]uch a judgment is a nullity, irrespective of the question of merit". [FN 3: Shaw v. Shaw 97 (2d A.D.2d 403, 467 N.Y.S.2d 231 (2 oep t 1983). The U.S. Supreme Court has so held even as a matter of federal constitutional law. See Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988)] Indeed it would not even be proper to make the vacatur of the Page -2- 3 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 judgment conditional, such as by requiring the defendant to appear and defend the case on the merits or to waive a defense, such as the statute of limitations. The Court in such an instance is "without authority to take dismiss." any action other than to [FN 4: Community State Bank v. Haakonson, 94 A.D.2d 838, I 463 N.Y.S.2d 105 (3d 1983)]" Dep't Siegel, New York 4" Practice, Ed., §430, page 730, citing Shaw v. Shaw 97 A.D.2d ~ ~ 403, 467 (2d Dep' N.Y.S.2d ~ ~ 231 (2 Dep't 1983); Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988); Community State Bank v. Haakonson, 94 A.D.2d ~ 838, 463 N.Y.S.2d ~ Dep' 105 (3d Dep't 1983) Essentially, the time to respond to the Summons and Complaint does not even truly begin to run in the absence of proper Service of Process. It cannot be said Page -3- 4 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 that the time has expired if the time has not even begun. Nor does Service of various other documents establish jurisdiction. Only Service of the Summons establishes jurisdiction. Neither does Plaintiff meet its obligation to establish jurisdiction merely by raising awareness of the pendency of an action. In County of Nassau v. Letosky the Appellate Division, Second Department, held: "Although the plaintiff notes that Letosky did not deny receipt of the summons and complaint affixed to the door of her residence, '[w]hen the requirements for service of process have not been met, it is irrelevant that defendant documents' may have actually received the (Raschel v. Rish, 69 NY2 694, 697 [1986]; see Hillary v. Grace, 213 AD2d 450 [1995]; Dewey v. Hillcrest Gen. Hosp., 201 AD2d 609 [1994]). . Accordingly Letosky's motion to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction was properly granted." (2nd County of Nassau v. Letosky, 34 AD3d 414 Dept. 2007) citing Raschel v. Rish, 69 NY2 694, 697 [1986]; Hillary v. Grace, 213 AD2d 450 [1995]; Dewey v. Hillcrest Gen. Hosp., 201 AD2d 609 [1994]. Page -4- 5 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 Service of process is a constitutional requirement necessary for the court to exercise jurisdiction over a party. Patrician Plastic Corp. ~ v. Bernadel Realty Corp., ., 25 N.Y.2d 599, 607, 307 N.Y.S.2d (" 868, 875 (1970) ("The short of it is that process serves to subject a person to jurisdiction in an action pending in a particular court and to give notice of proceedings." the (citations omitted)). Moreover, the Court of Appeals has held that the statutory requirements for personal service mandate strict compliance. Dorfman v. Leidner, 76 N.Y.2d 956, 958, 563 (" N.Y.S.2d 723, 725 (2000) ("Service of process is carefully prescribed by the Legislature . . . . Regularity of process, certainty and reliability for all litigants and for the courts are highly desirable objectives to avoid generating collateral disputes. These objects are served by adherence to the statute . Page -5- 6 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 . . ."). When a party is not properly served, the court lacks jurisdiction over that party. See, e.g., Keane v. Kamin, 94 NY2d 263, 265, 701 N.Y.S.2d ~ ~ ~ 698, (" 699 (1999) ("Typically, a defendant who is otherwise subject to a court's jurisdiction, may seek dismissal based on the claim that service was not properly effectuated."). And "therefore all further proceedings nullities." . . . [are] absolute Mayers v. Cadman Towers, 89 A.D.2d 844, 845, 453 N.Y.S.2d 25, 27 (App. Div. 2d Dep't 1982). ~ An application pursuant to CPLR Rule 5015(a) (4) is brought specifically upon the ground of lack of jurisdiction to render the judgment or order. Where the court' application for vacatur is grounded upon the court's lack of personal jurisdiction due to improper service of process, the movant need not show either a reasonable excuse nor a meritorious defense. Prudence Page -6- 7 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 v. Wright, 94 .D3d A.D.3d 1073, 943 ..S2d N.Y.S.2d 185, 186 (App. Div. 2d Dep't 2012); Toyota Motor Credit Corp. . v. Lam, 93 A.D.3d 713, 713-14, 939 N.Y.S.2d 869, 870 (App. Div. 2d Dep't 2012); Deutsche Bank Nat'l Trust Co. v. Pestano, 71A.D.3d 1074, 1075, 899 N.Y.S.2d 269, 271 Dep' (App. Div. 2d Dep't 2010). This is because it is "axiomatic" that "the failure to serve process in an action leaves the court without personal jurisdiction over the defendant, and all subsequent proceedings are void." thereby rendered null and Hossain v. Fab Cab Corp., ., 57 A.D.3d 484, 485, 868 N.Y.S.2d 746 (App. Div. Dep' 2d Dep't 2008). . Chase Manhattan Bank, N.A., v. Carlson, 113 A.D.2d ~ 734, 493 N.Y.S.2d ~ . 339 (App. Div. 2d Dep't (" 1985) ("Absent proper service of a summons, a default judgment is deemed a nullity and once it is shown that proper service was not effected the judgment must be unconditionally vacated."). .~ Page -7- 8 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 POINT II TRAVERSE IS REQUIRED Defendant unequivocally refuted the Affidavit of Service. Once the Affidavit of Service has been refuted, a Traverse Hearing is required to ascertain the truth. Skyline Agency v. Coppotelli, Inc., 117 (2nd A.D.2d ~ ~ 135, 139 Dept., 1986). ~ "It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action (Green Point Sav. Bank v Taylor, 92 A.D.2d 910; Bernardo v Barrett 87 A.D.2d aff' 1006)." 832, aff'd 57 N.Y.2d ~ Skyline Agency v. (2nd Coppotelli, Inc., 117 A.D.2d 135, 139 Dept., 1986) citing Green Point Sav. Bank v Taylor, 92 A.D.2d 910; aff' Bernardo v Barrett, 87 A.D.2d 832, aff'd 57 N.Y.2d 1006). . Page -8- 9 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 In resolving the jurisdictional question pursuant to CPLR Rule 5015(a) (4), the court must first determine whether the plaintiff effectuated proper service of process. Marable v. Williams, 278 A.D.2d at 459, 718 (" N.Y.S.2d at 401 ("Whether or not service was properly effectuated is a threshold issue to be determined before consideration of discretionary relief pursuant to C.P.L.R. 5015(a) (1)."); Cipriano v. Hank, 197 A.D.2d Dep' 295, 298, 610 N.Y.S.2d 523, 520 (App. Div. 1st Dep't (" 1994) ("Defendant's lack of a reasonable excuse . . . is obviated if the court is without personal jurisdiction over defendant, and all subsequent proceedings would be rendered null and void.") (citation omitted); Anello v. Barry, , 149 A.D.2d 640, 641, 540 N.Y.S.2d 460, 461 (App. Div. 2d Dep't 1989) ("[T]he court erred in vacating the default as excusable pursuant to C.P.L.R. 5015(a) (1) without Page -9- 10 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 initially resolving the jurisdictional issue under C.P.L.R. 5015(a) (4).")..") (citation omitted) . In order to rebut the presumption of proper service the defendant must personally contest the service on motion. Walkes v. Benoitr 257 A.D.2d 508, 508, 684 N.Y.S.2d 533, 534 (1st Dep't 1999). ~ In defendant's moving papers, he or she must either submit a sworn denial of service or swear to specific facts to rebut the process server's affidavit. Puco v. DeFeo, 296 A.D.2d 571, 571, 745 N.Y.S.2d 719, 719-20 (App. Div. 2d Dep't 2002); Parker v. Top Homes, Inc., 58 A.D.3d 817, I 873 N.Y.S.2d 112 (24pp. Div. 2d Dep't 2009) (finding that the defendant "failed to submit a sworn denial of service or specific statements to servers' rebut the statements in the process affidavits") (emphasis added); Johnson v. Deas, 32 A.D.3d 253, 819 N.Y.S.2d 751 (App. Div. 1st Dep't Page -10- 11 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 2006). (remanding to hold a traverse hearing, stating that "the absence of defendant's sworn denial of service is not fatal.") ~ Thus, where a defendant provides a sworn denial of service, and thus rebuts the process server's affidavit of service, the defendant is entitled to a traverse hearing, at which the plaintiff must prove jurisdiction by a preponderance of evidence. See, e.g., Elm Management Corp. . v. Sprung, , 33 A.D.3d 753, Dep' 754-55, 823 N.Y.S.2d 187, 188-89 (App. Div. 2d Dep't 2006) (reversing the denial of the defendant's motion to dismiss for lack of personal jurisdiction by reason of improper service of process, and holding that the defendant's sworn denial of receipt of process was sufficient to rebut the plaintiff's affidavit of service and the plaintiff, therefore, was required to establish personal jurisdiction by a preponderance of Page -11- 12 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 the evidence at a hearing); Dime Savings Bank v. Steinman, 206 A.D.2d 404, 613 N.Y.S.2d 945 (App. Div. 2d Dep't 1994) (remanding for a traverse hearing, stating: "The sworn denials of the appellants that they had been served with process pursuant to CPLR 308(2), as alleged by the plaintiff's process server, requires a hearing to determine whether they were in fact properly served . . . ."). See also, e.g., Matter of TNT Petroleum, Inc. v. Sea Petroleum, Inc., 40 A.D.3d 771, 771-72, 833 N.Y.S.2d 906, 907 (App. Div. 2d Dep't 2007); Schwerner v. Saqonas, 28 A.D.3d 468, 811 5' ~N' N.Y.S.2d 595 (JNpp. Div. . 2d Dep't 2006); Kingsland Group, Inc. v. Pose, 296 A.D.2d 440, 440-41, 744 N.Y.S.2d 715, 716 (App. ~ Div. 2d Dep't 2002); Balancio v. Santorelli, 267 A.D.2d 189, 699 N.Y.S.2d 312 (2¼pp. Div. 2d Dep't 1999); Long Island Savings Bank v. Meliso, 229 A.D.2d 478, 645 N.Y.S.2d 519, 520 (2½pp. Page -12- 13 of 14 FILED: BRONX COUNTY CLERK 02/14/2018 01:27 PM INDEX NO. 32685/2017E NYSCEF DOC. NO. 77 RECEIVED NYSCEF: 02/14/2018 Dep' Div. 2d Dep't 1996); and Micalizzi v. Gomes, 204 A.D.2d Dep' 284, 614 N.Y.S.2d 155 (App. Div. 2d t 1994). . CONCLUSION Defendant' For all of the reasons set forth above Defendant's motion should be granted in it's entirety. WHEREFORE, Defendant Egerton Walker respectfully requests that this Action be dismissed in itsentirety, the notice of pendency be vacatedand that Defendant be granted such other and finisher relief as may be found to be just and proper under the circumstances. State of New York County of New York . Dated: Februa1y 12, 2018 Michael Kennedy Karlson Attorney for Defendant (Egerton Walker) 5030 Broadway, Suite 813 New York, NY 10034 (212) 569-9597 Page -13- 14 of 14