Scarano v. Scarano
880 N.Y.S.2d 682
N.Y. App. Div.
2009
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LAURIE SCARANO, Respondent, v STEVEN SCARANO, Appellant

Supreme Court, Appellate Division, Second Department, New York

59 AD3d 716 | 880 NYS2d 682

In a matrimonial action in which the parties were divorced by judgment entered December 15, 1999, the defendant father appeals from an order of the Supreme Court, Nassau County (Stack, J.), dated December 15, 2007, which, inter alia, granted the motion of the plaintiff mother to hold him in contempt for failure to comply with the child support provisions contained in the parties’ so-ordered agreement dated February 28, 2005, directed his incarceration for a period of 90 days in the Nassau County Correctional Facility, and permitted him to purge himself of the contempt by making payments in accordance with a schedule.

Ordered that the order is affirmed, without costs or disbursements.

The defendant argues that the trial court should have granted an evidentiary hearing to determine whether he had been personally served with the order to show cause and motion papers upon which the finding of contempt was made. We disagree. A process server‘s affidavit of service constitutes prima facie evidence of proper service (see ; ). Although a defendant‘s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server‘s affidavit and necessitates an evidentiary hearing (see ), no hearing is required where the defendant fails to swear to “specific facts to rebut the statements in the process server‘s affidavits” (). Here, the defendant‘s affidavit was insufficient. Since he never denied the specific facts contained in the process server‘s affidavit, no hearing was required.

The defendant‘s remaining contentions are without merit.

Rivera, J.P., Eng, Chambers and Hall, JJ., concur.