In this debt-nonpayment proceeding, defendant, Kimberly Pimentel, moves to dismiss for lack of personal jurisdiction due to asserted improper service. (See CPLR 308 [2], 3211 [a] [8)].) Defendant contends that process server Yoler Jean-Baptiste's affidavit of service, which alleges that he served a summons with notice on defendant's co-tenant "Alonso Bautista" on May 16, 2023, is inaccurate. (See NYSCEF No. 4 at 1.) Neither plaintiff nor defendant has stated who Bautista is, but the process server described him in his affidavit as a 35-year-old, brown-skinned male with black hair and approximately 5'7" tall. (NYSCEF No. 30.) This court, by order entered January 30, 2024, granted defendant's motion to dismiss only to the extent of setting the matter down for a traverse hearing on the validity of service. (NYSCEF No. 45.) During the hearing, conducted on May 21 and June 5, 2024, this court heard testimony from the state's sole witness, process server Jean-Baptiste, and from defendant's sole witness, defendant herself.

The court finds the process server credible. His testimony established that he visited defendant's residential address on May 16, 2023, knocked on her apartment door, and spoke with a man he said was Alonso Bautista, defendant's co-tenant. (Traverse Hearing Tr. at 40—50.) After Bautista told the process server that defendant was not home and did not serve in the military, the process server served him with the summons with notice. (Id. at Tr. 112—114.) Plaintiff [*2]contends that this delivery of service was conducted through substitute service on an individual of suitable age and discretion at defendant's actual dwelling place or usual abode. (See CPLR 308 [2]).

Defendant, by contrast, denied knowing her alleged co-tenant Bautista. Instead, defendant testified that she lives with her cousin, Cristofer Vasquez. (Traverse Hearing Tr. at 144, 148—49.) According to Vasquez's driver's license, admitted into evidence by defendant during the hearing, Vasquez's physical description generally matches that of Bautista. (Defendant's Exhibit E [describing Vasquez as a 25-year-old, brown-skinned male with black hair who is 5'10"].) Indeed, defendant testified that Vasquez brought the summons with notice into her apartment and placed it on her bed, where she discovered it on May 16. (Id. at Tr. 151—152.)

Defendant's testimony about the validity of service, however, was not credible: It raised an inconsistency about a key fact. Defendant testified at the traverse hearing that Vasquez told her that he discovered the summons on the first floor of the building on May 16. (Id. at Tr. 151—153.) Defendant had previously stated in her July 21, 2023, affidavit, however, that Vasquez—her cousin and co-tenant—discovered the summons outside her apartment door. (NYSCEF No. 18 at ¶ 4.) Defendant's July 21 affidavit does not clarify how she learned this information.

Given defendant's inconsistent testimony, the court requested at the traverse hearing that plaintiff arrange for Vasquez to testify. The court offered to continue the hearing, to be held in-person or virtually, at Vasquez's convenience. (Traverse Hearing Tr. at 161—162.) Despite the court's request, ample notice to Vasquez, and flexibility in scheduling, Vasquez has declined to appear, according to an email received from defendant's counsel in September 2024.

This court draws an adverse inference from Vasquez's failure to appear to support defendant's version of events. Vasquez is a material witness available to defendant and under her control. Vasquez's "extreme time constraints" resulting from two security-guard jobs, as described in defendant's counsel's September 2024 email, are insufficient to excuse his failure to testify under such flexible circumstances. (See DeVito v Feliciano, 22 NY3d 159, 165 [2013] [allowing finders of fact to draw adverse inferences when a material witness under a party's control fails to testify, and to conclude that the absent witness's testimony would be unfavorable to that party].) This court will draw the strongest negative inference from Vasquez's failure to appear that the evidence will allow.

Plaintiff met its burden of establishing, by a preponderance of the credible evidence, proper service of the summons. The process server's testimony is corroborated by his field sheet, a GPS photo he captured of the buzzer to defendant's apartment building, and his digital records log and GPS Report for May 16, 2023. (See NYSCEF Nos. 28—31.) This court finds that the process server served, at the service address, an individual who identified himself as defendant's co-tenant, and that this person was of suitable age and discretion to accept service. This court need not resolve whether Bautista was actually Vasquez, although the record supports such a finding. Bautista gave the process server sufficiently detailed information about defendant, and Bautista's relationship to her, to justify the process server's conclusion that Bautista was reasonably likely to inform defendant of the action. (See CPLR 308.)

Defendant's conflicting testimony at the hearing is insufficient to rebut the presumption of proper service raised by the process server's affidavit. (Cf. U.S. Bank N.A. v Nakash, 195 AD3d 651, 652 [2d Dept 2021] [noting that process server's affidavit creates a presumption of [*3]proper service].) Defendant's insistence that she does not know Bautista, coupled with the discrepancy in her testimony, falls short of what is required to rebut proper service. The process server's testimony and accompanying exhibits sufficiently demonstrate that service upon this individual, of suitable age and discretion, was reasonably calculated to inform defendant of the action. (See CPLR 308.)

Accordingly, it is

ORDERED that Traverse is overruled; and it is further

ORDERED that defendant's motion to dismiss is therefore denied; and it is further

ORDERED that defendant serve and file an answer within 20 days of entry of this order; and it is further

ORDERED that the parties appear before this court for a telephonic preliminary conference on February 28, 2025.

This constitutes the court's post-Traverse hearing decision and order.