650 N.Y.S.2d 754 | N.Y. App. Div. | 1996
In an action to foreclose a mortgage, the defendants John Herrick and Raina Herrick appeal from an order of the Supreme Court, Nassau County (O’Brien, J.), entered July 13, 1995, which granted the plaintiff’s motion for summary judgment, and denied their cross motion to dismiss the complaint.
Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment is denied, and the cross motion is granted to the extent that the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine whether process was properly served.
It is well established that the burden of proving that personal jurisdiction was acquired rests at all times upon the plaintiff in the action. Ordinarily, a proper affidavit of a process server attesting to personal delivery of a summons to a defendant is suf
Here the appellants submitted an affidavit by John Herrick stating that he found two copies of the summons and complaint wedged in the front door of his residence. He stated that he was never personally served with the summons and complaint either on his own behalf, or on behalf of his wife. He stated that he did not receive any papers other than those wedged in his front door. This rebuts the allegations contained in the affidavits of service submitted by the plaintiff. In light of the foregoing, we conclude that there exists a conflict with respect to whether service was properly made, and that the appellants are, therefore, entitled to a hearing on this issue (see, Frankel v Schilling, supra). Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.