In this action seeking to hold guarantors (defendants David and Ira Goldstein) on a lease liable for alleged unpaid rent, defendant Ira Goldstein moves to dismiss the complaint as against him under CPLR 3211 (a) (8) for lack of proper service. The motion to dismiss is denied.

Plaintiff brought this action in May 2019. In July 2019, Goldstein moved to dismiss under CPLR 3211 (a) (8). (See NYSCEF No. 2.) Goldstein is a resident of North Carolina; his motion asserted, among other things, that he had never been properly served personally with the [*2]summons and complaint. (See NYSCEF Nos. 3, 7.) In August 2019, while the motion to dismiss was pending, plaintiff re-served him at his North Carolina residence by the affix-and-mail method under CPLR 308 (4) and CPLR 313. (See NYSCEF No. 14.)

Plaintiff then opposed the motion to dismiss, arguing that at minimum the second service on Goldstein was valid, and that it cured any deficiency that might have existed with respect to the first service. (See NYSCEF No. 15 at 9-10.) On reply, Goldstein asserted that no one had affixed service of the summons and complaint to his door, and that in any event the second service also was invalid, because it did not satisfy the requirements of CPLR 313. The reply did not, however, specify which aspect of CPLR 313 was not satisfied. (See NYSCEF No. 26 at 2; NYSCEF No. 27 at 3-4.)

The affidavit of a process server is prima facie evidence of proper service. (Matter of de Sanchez, 57 AD3d 452, 454 [1st Dept 2008].) This evidence cannot be rebutted merely by a bare, conclusory denial of service. (See Pasanella v Quinn, 126 AD3d 504, 505 [1st Dept 2012].) Here, plaintiff's affidavit of service lists several service attempts and provides a detailed description of the circumstances under which service was attempted—including that he sought assistance from Goldstein's neighbors and that he left a note on Goldstein's door trying to reach him before he ultimately affixed the summons and complaint. (See NYSCEF No. 14 at 1.) Goldstein's contrary affidavit on reply merely "den[ies] that such service was ever made," and states, without elaboration, that "a copy of the Summons and Complaint was not affixed to the door to my residence" and that a process server had not "attempt[ed] to gain entry to [his] residence to [his] knowledge." (NYSCEF No. 26 at 2.) This response is not sufficient to rebut the affidavit of service and create an issue of fact requiring a traverse hearing.

As noted above, though, Goldstein also contends that the affidavit of service does not establish that service was valid under CPLR 313, governing out-of-state service. (See NYSCEF No. 27 at 1-2. CPLR 313 provides that where, as here, an individual is subject to the long-arm jurisdiction of the New York courts under CPLR 302,^[FN1] the individual"may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service within the state who is a resident of the state," or by any person "authorized to make service by the laws of the state, territory, possession or country in which service is made."

Goldstein does not specify which aspect of CPLR 313 he believes that plaintiff's affidavit of service failed to satisfy. It is undisputed that the affidavit attests to service having been made by affix-and-mail service consistent with CPLR 308 (4). Although the affidavit contains no information suggesting that the individual who affixed the pleadings to Goldstein's door was authorized under North Carolina law to make service, it does state that he is employed by PM [*3]Legal, an established New York service firm. And defendant does not identify any basis to conclude that the process server was not authorized to serve process in New York. (Cf. Pasanella, 126 AD3d at 505 [directing a traverse hearing where defendant came forward with evidence that the process server was not authorized to make service in New York].)

It is also true, though, that the affidavit of service does not state that the individual who affixed the pleadings is a resident of New York—unlike, for example, the service affidavit attesting to the follow-up mailing on Goldstein (which was filed by a different person). (Compare NYSCEF No. 14 at 1, with id. at 2.) Thus, to the extent that defendant's challenge to plaintiff's compliance with CPLR 313 is grounded in plaintiff's failure to establish that service was made on Goldstein by a New York resident, defendant is correct that the affidavit of service is insufficient.

That defect is not enough to defeat service, however. This court may properly choose under CPLR 2001 to overlook technical infirmities in service, so long as those infirmities are not prejudicial—i.e., if the infirmity at issue "has no effect on the likelihood of defendant's receipt of actual notice" of the pleading being served. (Ruffin v Lion Corp., 15 NY3d 578, 583 [2010].) And the Court in Ruffin squarely held that courts may disregard "a defect related to the residence of a process server" under CPLR 2001, because that defect will not affect the likelihood that the process server will successfully deliver the documents being served. (Id.)

Goldstein has not identified a reason to conclude that in this case the process server's (potential) lack of New York residency would pose more of an obstacle to successful service than in Ruffin. And given the process server's detailed affidavit—and that plaintiff chose to go to the trouble of re-serving Goldstein in North Carolina specifically to cure a potential defect in service—this court is disinclined to treat the failure to establish the process server's residency as a fatal defect in service.

For these reasons, this court is not persuaded by Goldstein's argument that plaintiff's re-service of process on him remained invalid. Accordingly, it is hereby

ORDERED that defendant Ira Goldstein's motion to dismiss the complaint under CPLR 3211 (a) (8) is denied.