LeFevre v. Cole

Sep 25, 1981
Versions:83 A.D.2d 992

Order unanimously reversed, without costs, and matter remitted to Special Term for further proceedings, in accordance with the following memorandum: In this CPLR 3211 (subd [a], par 8) motion to dismiss the action for lack of jurisdiction, defendant’s sworn denial of receipt of a copy of the summons personally or by mail contradicts the affidavit of service of process which on its face meets each requirement of CPLR 308 (subd 2). Accordingly, a trial of this issue is appropriate to determine whether the summons in the action had in fact been mailed to defendant (CPLR 3211, subd [c]; Empire Nat. Bank v Judal Constr. of N.Y., 61 AD2d 789, 790; see, also, Howard v Spitalnik, 68 AD2d 803; Siegel; Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3211:47, pp 50-51). Our holding in Lincoln First Bank-Cent. Nat. Assn. v Bombard Chevrolet (55 AD2d 1048) does not require a different result. There defendants’ allegations that they did not “remember” being personally served were held to be insufficient to rebut the documentary proof that proper personal service was effected upon them. Here defendant, although he concedes that the summons was delivered to a person of suitable age at his dwelling place, denies receipt of a copy of the process by mail. It is for the trier of the fact to resolve the issue raised on this motion and to determine whether defendant’s testimony controverts proof of mailing. (Appeal from order of Monroe Supreme Court, Erwin, J. — dismiss action.) Present — Dillon, P. J., Simons, Doerr, Moule and Schnepp, JJ.