Defendant moved for an order vacating the default judgment dated October 5, 2011 and for an order directing that the Wage Garnishment dated December 6, 2012 be vacated and restoring the matter to the calendar.

Plaintiff Riverwalk Holding, LTD commenced the within action against defendant, Victor E. Fiallo a/k/a Victor Fiallo ("Fiallo") alleging a default by Fiallo on a revolving credit agreement with a balance of $31,240 plus interest from March 31, 2009. The Summons and Complaint was purportedly served Fiallo on January 11, 2011 at 100-26 67 Road, Forest Hills, New York in accordance with CPLR §308(4) and a default judgment was entered against Fiallo. Defendant's order to show cause to vacate the default was granted to extent of setting the matter down for a traverse hearing, which was held on May 15, 2013.

Based upon the evidence adduced at the hearing, the court finds that service was not effectuated as more fully set forth below, and the judgment is vacated and the matter dismissed.

Facts

Plaintiff produced Richard Curo, licensed process server, who testified that he had been a process server for 14 years full time, that he had no independent recollection of the service at issue the Affidavit of service was admitted into evidence which matched his notes that service was attempted 4 times at 100-26 67th Road, apt 2E, Forest hills NY 11375, and at the 4th attempt on January 11, 2011 at 7:15 PM by affixing a copy to the door. A copy of the summons and complaint were later mailed to the Plaintiff at the 67th Road address. Curo testified during Cross examination that he could not describe the building, he did not personally run a DMV check for last known address and never investigated Plaintiff's possible employment. Plaintiff rested without calling any additional witnesses.

Defendant, appearing pro-se, testified that on January 11, 2011, the purported date of service, he was no longer residing at 100-26 67 Road, Forest Hills New York. Fiallo submitted a [*2]copy of a Lease Agreement, admitted as Defendant's Exhibit A, for a premises located at 62-57 Booth St., Rego Park New York for a term of 2 years beginning on March 24, 2010 and running through the date of service listed in the Affidavit of Service and attempted to introduce copies of bills sent to defendant and his wife at the Booth Address.

At a traverse hearing, plaintiff has the burden of proving, by a fair preponderance of the evidence, that service on Fiallo had been properly effectuated. (Frankel v. Schilling, 149 AD2d 657 [2nd Dept 1989].) "[O]rdinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is sufficient to support a finding of jurisdiction." (Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 AD2d 135 [2nd Dept 1986].) "It is well settled, however, that where there is a sworn denial of service by the defendant, the affidavit of service is rebutted and the plaintiff must establish jurisdiction by a preponderance of the evidence at a hearing. (Frankel v. Schilling, 149 AD2d 657 [2nd Dept 1989]; citing Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., supra.)

At the hearing, plaintiff asserted that service upon the defendant was effectuated via "affix and mail" service. Pursuant to CPLR §308(4), the "nail and mail" method of service may only be used where personal service under CPLR §§ 308(1) and (2) cannot be made with "due diligence." (JPMorgan Chase Bank, N.A. v Iancu Pizza, Ltd. 78 AD3d 902 [2nd Dept 2010]; Gurevitch v Goodman, 269 AD2d 355 [2nd Dept 2000].) "The due diligence requirement of CPLR §308 (4) must be strictly observed, given the reduced likelihood that a summons served pursuant to [nail and mail] will be received." (O'Connell v. Post, 27 AD3d 630 [2nd Dept 2006]; Gurevitch v. Goodman, 269 AD2d 355 [2nd Dept 2000].) Furthermore, the mere fact that Curo made four attempts at service is insufficient to meet the "due diligence" requirement. (Fattarusso v. Levco American Imp. Corp., 144 AD2d 626 [2nd Dept 1988] appeal dismissed, 73 NY2d 944,540 N.Y.S.2d 1005 (1989), appeal denied, 74 NY2d 604, 543 N.Y.S.2d 397 (1989).) The testimony of plaintiff's process server, Curo, failed to demonstrate that Curo personally ran a DMV check for defendant's last known address or that he investigated plaintiff's possible employment. In addition, Curo was unable to describe the building nor did he have any independent recollection of the purported service.

Accordingly, as plaintiff failed to meet its prima facie burden as to due diligence, the attempted service of the summons and complaint pursuant to CPLR §308 (4) was defective as a

matter of law.

Even if the plaintiff had met its initial burden, defendant testified that on January 11, 2011, the purported date of service, he was no longer residing at 100-26 67 Road, Forest Hills New York; due to financial difficulties he and his wife could no longer support the residence on 67th Road. Fiallo supported that contention by submitting a copy of a Lease for a premises located at 62-57 Booth St., Rego Park New York for a term of 2 years beginning on March 24, 2010 and running through the date of service listed in the Affidavit of Service. Fiallo also attempted to submit copies of bills sent to the Booth Address but those were not admissible because they were not addressed to the Defendant. Nonetheless, "[t]he credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be [*3]accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, [are] issues of the trier of the facts. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses..." (Barnet v. Cannizzaro, 3 AD2d 745 [1957]; Healy v. Williams, 30 AD3d 466 [2nd Dept 2006].)

Whether the process server affixed a copy of the summons and complaint and later mailed same is not the issue; rather, it was the failure of Plaintiff to prove that it ascertained whether the address was correct before resorting to "nail and mail" with diligence. Accordingly, defendant's motion to vacate the default judgment is granted, all restraints and garnishments are vacated and because the court is without personal jurisdiction over the defendant, the complaint is dismissed.

This constitutes the decision and order of the court.

Dated: July 11, 2013

______________________________

Bernice D. Siegal, J. S.C.