| Severn Trent Water Purification, Inc. v C & C Duplicators, Inc. |
| 2006 NYSlipOp 50248(U) |
| Decided on February 17, 2006 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Suffolk County, Second District (Patrick Barton, J.), entered November 8, 2004. The order granted defendant's motion to vacate a default judgment.
Order unanimously reversed without costs and matter remanded for a determination de novo of defendant's motion to vacate a default judgment, following a traverse hearing.
While plaintiff's affidavit of service on defendant corporation, alleging the summons and complaint's receipt by defendant's agent at defendant's corporate address, established service prima facie (CPLR 311 [a] [1]; Matter of Hanover Ins. Co. v Cannon Express Corp., 1 AD3d 358, 359 [2003]; see generally Fashion Page v Zurich Ins. Co., 50 NY2d 265, 271-272 [1980]), the affidavit of defendant's president, which alleged, in effect, that all employees authorized to accept service on defendant's behalf denied receiving the papers and that a search of defendant's offices failed to produce said papers, suffices to warrant a traverse hearing. Upon a review of the motion papers, we find no basis to vacate the default judgment other than for lack of jurisdiction of which a triable issue of fact exists.
Decision Date: February 17, 2006