Upon the foregoing papers, the motion by plaintiff Herndon Williams for default judgment and the cross-motion by defendant Customs Forms Furniture Corporation hereinafter (Custom) to dismiss the claim are both denied. However, a traverse hearing will be granted.

On May 3, 2004, the plaintiff suffered personal injuries when he allegedly slipped and fell at premises leased and occupied by defendant. Subsequently, he commenced this negligence action against Custom and the owner of the premises 201 46th Realty LLC. On or about April 23, 2007, after Custom failed to answer the Complaint, plaintiff moved for a default judgment to be entered against Custom. Custom alleged that service was improper because the Summons and Complaint was not served upon an individual authorized to accept service or to the Secretary of State. Custom also claimed that the failure by plaintiff to move for default judgment within a year after default occurred should result in the dismissal of the plaintiff's complaint as abandoned.

CPLR 3215(C) provides in pertinent part that, "if plaintiff fails to take proceedings for entry of judgment within one year after default, the court shall not enter judgment but shall dismiss the complaint as abandoned...unless sufficient cause is shown as to why the complaint should not be dismissed." Allegations by a plaintiff's attorney that repeated, unsuccessful attempts were made to obtain an answer have to be substantiated (Valentin v. Rinder,65 AD2d 716, 410 NYS2d 815). If the plaintiff submits a valid uncontested affidavit which contains a reasonable excuse for the delay and his claim is meritorious the complaint should not be dismissed (Woodward v. City of New York, 119 AD2d 749, 510 [*2]NYS2d 159). Here, the plaintiff's counsel submitted an affidavit alleging that he spoke to the defendant Mr. Weinberger on multiple occasions discussing the case. Mr. Weinberger allegedly told Plaintiff's counsel that he was waiting for his insurance company to handle the situation. Moreover, after defendant's insurance carrier had denied coverage for the incident, plaintiff's counsel had numerous conversations with defendant's counsel in which the defendant allegedly offered to settle for a nominal value. Neither defendant nor defendant's counsel deny that these events occurred. Given the existence of a reasonable excuse for delay and a meritorious claim, the complaint should not be dismissed.

The strong policy favoring the disposition of actions on the merits, a possible meritorious defense sufficient to deny default, and the absence of prejudice to the defendant justify vacatur of default judgment (Crooks v. Lear Taxi Corp., 136 AD2d 452, 522 NYS2d 867). Here the defendant submitted a sworn denial of service raises a possible meritorious defense to default judgment. Furthermore, there is no prejudice to the plaintiff. Therefore, the default judgment will be denied and the plaintiff will be allowed to answer.

In New York, a process server's affidavit of service establishes a prima facie case that service of the complaint upon the defendant was proper. See NYCTL 1997-1 Trust v. Nillas, 288 AD2d 279, 732 NYS2d 872,873 (2001). However, a defendant's sworn denial of receipt of service rebuts the presumption of proper service established by process server's affidavit and necessitates an evidentiary hearing. See Skyline Agency, Inc v. Ambrose Coppotelli, Inc., 117 AD2d 135, 502 NYS2d 533,534 (1999). In the case at bar, there was a sworn affidavit by the defendant to rebut the presumption that the defendant was properly served. Therefore, a traverse hearing should be granted and the plaintiff must establish jurisdiction by a preponderance of the evidence.

In conclusion, both motion for default judgment and cross-motion to dismiss the claim are denied and a traverse hearing will be granted.

E N T E R:

Larry D. Martin

J.S.C.