Appeal from an order of the District Court of Suffolk County, Fourth District

(C. Stephen Hackeling, J.), dated February 21, 2012. The order denied defendant's motion to vacate his default in appearing, permit him to serve an answer, and dismiss the complaint pursuant to CPLR 3211 (a) (5), and granted plaintiff's cross motion for leave to file an amended complaint.

ORDERED that the order is modified by vacating so much of the order as denied defendant's motion; as so modified, the order is affirmed, without costs, and the matter is remitted to the District Court for a new determination of defendant's motion following a traverse hearing.

In this action to recover on four promissory notes, plaintiff alleges that defendant defaulted on federal student loans by failing to make payments in the sum of $14,573.76. The affidavit of plaintiff's process server states that he affixed the summons and complaint to the door of defendant's residence and mailed the pleadings to defendant at his home address, after having made three attempts at service at defendant's home. Following defendant's failure to appear or to answer the complaint, plaintiff served a notice of inquest upon defendant. The notice of inquest was served by first-class mail to defendant's home address, and, in a letter addressed to the District Court, defendant acknowledged receipt of the notice. Defendant then moved to vacate his default in appearing and to permit him to serve an answer, and to dismiss the complaint pursuant to CPLR 3211 (a) (5), asserting that he had not been properly or personally served with the summons and complaint. In his supporting affidavit, defendant averred that he had been at home on two of the three occasions when the process server had allegedly gone to his house and that he would have been the person to answer the door had anyone rung his door bell or knocked on the door. Defendant further stated that, on the date of the third purported attempt at service, he was at work, but service was not attempted at his place of employment. Defendant also maintained that he did not find a copy of the summons and complaint affixed to the door of his residence. Furthermore, defendant argued that he had a meritorious defense to the action, in that plaintiff had failed to timely commence the action. Plaintiff opposed defendant's motion and cross-moved for leave to amend the complaint to reflect the proper name and address of the [*2]university. The District Court denied defendant's motion and granted plaintiff's cross motion.

Ordinarily, a process server's affidavit establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (see Goralski v Nadzan, 89 AD3d 801 [2011]; University of Bridgeport v Emengo, 34 Misc 3d 145[A], 2012 NY Slip Op 50153[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, a defendant's sworn denial of receipt of service, containing specific facts to rebut the statements in the process server's affidavit, "generally rebuts the presumption of proper service established by [the] process server's affidavit and necessitates an evidentiary hearing" (Engel v Boymelgreen, 80 AD3d 653, 654 [2011] [internal quotation marks omitted]). Here, in light of defendant's denial of receipt of the summons and complaint, and the submission of defendant's affidavit raising bona fide concerns involving the veracity of the process server's statements, a hearing is required to determine, by a preponderance of the evidence, if the process server acted with due diligence before resorting to "nail and mail" service pursuant to CPLR 308 (4) (see Washington Mut. Bank v Holt, 71 AD3d 670 [2010]; Mortgage Access Corp. v Webb, 11 AD3d 592 [2004]; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343 [2003]; Severn Trent Water Purification, Inc. v C & C Duplicators, Inc., 11 Misc 3d 128[A], 2006 NY Slip Op 50248[U] [App Term, 9th & 10th Jud Dists 2006]).

Accordingly, the order is modified by vacating the denial of defendant's motion and remitting the matter to the District Court for a new determination of defendant's motion following a traverse hearing.

Nicolai and Iannacci, JJ., concur.

LaSalle, J.P., taking no part.
Decision Date: May 28, 2013