green
Positive treatment
Issue: traverse hearingNY ↗
Issue: sixth affirmative defenseNY ↗
Issue: eighth affirmative defenseNY ↗
Issue: seventh affirmative defenseNY ↗
34.9 score
G Cite
cited 2× by 2 distinct cases, 2017–2018 ·
…specific facts to rebut the statements in the process server's affidavit
at p. 370
⚠ not in text
cited 2× by 2 distinct cases, last quoted 2002 · 2 courts ·
…specific facts to rebut the statements in the process server's affidavits.
⚠ not in text
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002
2014
2026
Top citers, strongest first. 36 distinct citers.
How cited ↗
examined
Cited as authority (rule)
AMK Capital Corp. v. Cifre Realty Corp.
(5×)
Personal jurisdiction will be upheld without a traverse hearing if the only evidence submitted in opposition is a bare or conclusory denial of service ( Caba at 583 [Sworn denial conclusorily stating that defendant was not served was insufficient to rebut service as evinced by the affidavit of service.]; Simonds at 370 ["The defendants failed to submit a sworn denial of service.
discussed
Cited as authority (rule)
LVNV Funding, LLC v. Morell
Where a defendant fails to swear to specific facts to rebut the statements in the process server's affidavit, the defendant's motion to vacate a default judgment based on improper service may be denied without a hearing ( see Associates First Capital Corp. v Wiggins , 75 AD3d at 614 ; City of New York v Miller , 72 AD3d 726 [2010]; Scarano v Scarano , 63 AD3d 716 ; Simonds v Grobman , 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Xaverian High Sch. v. Carmona
However, where, as here, a defendant's sworn statement denying receipt of service contains "specific facts to rebut the statements in the process server's affidavit[]" ( Simonds v Grobman , 277 AD2d 369, 370 [2000]), a traverse hearing is necessary in order to determine whether service of process was properly effectuated pursuant to CPLR 308 (2) ( see Wells Fargo Bank, N.A. v Final Touch Interiors, LLC , 112 AD3d 813 [2013]; Wells Fargo Bank, N.A. v Christie , 83 AD3d 824 [2011]; New Century Fin.
discussed
Cited as authority (rule)
New Century Fin. Servs., Inc. v. Thomas
However, where, as here, a defendant's sworn statement denying receipt of service contains "specific facts to rebut the statements in the process server's affidavit[ ]" ( Simonds v Grobman , 277 AD2d 369, 370 [2000]), a traverse hearing is necessary in order to determine whether service of process was properly effectuated pursuant to CPLR 308 (2) ( see Wells Fargo Bank, N.A. v Final Touch Interiors , LLC, 112 AD3d 813 [2013]; Wells Fargo Bank, N.A. v Christie , 83 AD3d 824 [2011]).
discussed
Cited as authority (rule)
HSBC Mortgage Corp. (USA) v. Dickerson
“A hearing is not required where the defendant fails to ‘swear to specific facts to rebut the statements in the process server’s affidavits’ ” (U.S. Bank, N.A. v Peralta, 142 AD3d at 989 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Emigrant Bank v. Ramasir
“A hearing is not required where the defendant fails to ‘swear to specific facts to rebut the statements in the process server’s affidavits’ ” (U.S. Bank, N.A. v Peralta, 142 AD3d at 989 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
cited
Cited as authority (rule)
ANR v. Colaceci
Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002) (quoting Simonds v. Grobman, 277 A.D.2d 369, 369 (N.Y.
cited
Cited as authority (rule)
Wachovia Mortgage Corp. v. Toussaint
Mellon v Scura, 102 AD3d at 715; Scarano v Scarano, 63 AD3d 716, 716 [2009]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Citibank, N.A. v. Balsamo
“A hearing is not required where the defendant fails to ‘swear to specific facts to rebut the statements in the process server’s affidavits’ ” (U.S. Bank, N.A. v Peralta, 142 AD3d at 989 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]). *965 Here, the plaintiff’s affidavits of service constituted prima facie proof of proper service upon the defendants (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344 ).
discussed
Cited as authority (rule)
U.S. Bank, N.A. v. Peralta
A hearing is not required where the defendant fails to “swear to specific facts to rebut the statements in the process server’s affidavits” (Simonds v Grobman, 277 AD2d 369, 370 [2000]; see U.S. Bank N.A. v Losner, 125 AD3d 640 [2015]; Indymac Fed.
discussed
Cited as authority (rule)
Wells Fargo Bank, N.A. v. Walter
However, “no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716, 716 [2009], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
cited
Cited as authority (rule)
ANR v. Colacecci
Servs. of Am., Inc., 301 F.3d 54, 57 (2d Cir. 2002) (quoting Simonds v. Grobman, 277 A.D.2d 369, 369 (N.Y.
discussed
Cited as authority (rule)
American Home Mortgage Servicing, Inc. v. Gbede
“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, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (id., quoting Simonds v Grobman, 277 AD2d 369, 370 [2000] [citation omitted]; see Bank of N.Y. v Samuels, 107 AD3d 653 , 653 [2013]).
discussed
Cited as authority (rule)
Mortgage Electronic Registration Systems, Inc. v. Losco
“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, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits” (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d at 984-985 [internal quotation marks and citation omitted]; see Edwards, Angell, Palmer & Dodge, LLP v Gerschman, 116 AD3d 824, 825 [2014]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Edwards, Angell, Palmer & Dodge, LLP v. Gerschman
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Bank of N.Y. v Samuels, 107 AD3d 653 , 653 [2013]).
discussed
Cited as authority (rule)
Edwards, Angell, Palmer & Dodge, LLP v. Gerschman
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Bank of N.Y. v Samuels, 107 AD3d 653 , 653 [2013]).
discussed
Cited as authority (rule)
Bank of New York v.Samuels
“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, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716, 716 [2009] [cita tion omitted], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Matter of Romero v Ramirez, 100 AD3d 909 [2012]; lndymac Fed.
discussed
Cited as authority (rule)
Bank of New York v.Samuels
“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, no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716, 716 [2009] [cita tion omitted], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Matter of Romero v Ramirez, 100 AD3d 909 [2012]; lndymac Fed.
discussed
Cited as authority (rule)
NYCTL 2009-A Trust v. Tsafatinos
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits” (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d at 984-985 [internal quotation marks and some citations omitted]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749 ; Associates First C…
discussed
Cited as authority (rule)
NYCTL 2009-A Trust v. Tsafatinos
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits” (Countrywide Home Loans Servicing, LP v Albert, 78 AD3d at 984-985 [internal quotation marks and some citations omitted]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749 ; Associates First C…
discussed
Cited as authority (rule)
Romero v. Ramirez
“Although a [party’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, no hearing is required where the [party] fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716 [2009], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749).
cited
Cited as authority (rule)
Chichester v. Alal-Amin Grocery & Halal Meat
Bank Assn. v Melton, 90 AD3d 742, 743 [2011]; US Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Scarano v Scarano, 63 AD3d 716 [2009]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
cited
Cited as authority (rule)
Chichester v. Alal-Amin Grocery & Halal Meat
Bank Assn. v Melton, 90 AD3d 742, 743 [2011]; US Bank, N.A. v Arias, 85 AD3d 1014, 1015 [2011]; Scarano v Scarano, 63 AD3d 716 [2009]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Romero v. Ramirez
“Although a [party’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, no hearing is required where the [party] fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716 [2009], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Tikvah Enters., LLC v Neuman, 80 AD3d at 749).
discussed
Cited as authority (rule)
Indymac Federal Bank FSB v. Quattrochi
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716, 716 [2009], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984-985 [2010]; City o…
discussed
Cited as authority (rule)
Indymac Federal Bank FSB v. Quattrochi
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d 716, 716 [2009], quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984-985 [2010]; City o…
discussed
Cited as authority (rule)
Gray-Joseph v. Shuhai Liu
The defendants failed to submit a personally sworn denial of service by Yip (see Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327 [2009]; Olesniewicz v Khan, 8 AD3d 354, 355 [2004]; Simonds v Grobman, 277 AD2d 369, 370 [2000]; Walkes v Benoit, 257 AD2d 508 [1999]).
discussed
Cited as authority (rule)
U.S. Bank, National Ass'n v. Arias
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Tikvah Enterprises, LLC v. Neuman
“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 ... no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]; see Associates First Capital Corp. v Wiggins, 75 AD3d at 614-615 ; City of New York v Miller, 72 AD3d 726, 727 [2010]).
discussed
Cited as authority (rule)
Countrywide Home Loans Servicing, LP v. Albert
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Associates First Capital Corp. v. Wiggins
(2×)
“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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to ‘specific facts to rebut the statements in the process server’s affidavits’ ” (Scarano v Scarano, 63 AD3d at 716 , quoting Simonds v Grobman, 277 AD2d 369, 370 [2000]).
cited
Cited as authority (rule)
City of New York v. Miller
Owners Corp. v Beaton, 50 AD3d 845, 846 [2008]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
cited
Cited as authority (rule)
In re the Estate of Nieto
Owners Corp. v Beaton, 50 AD3d at 846 ; Simonds v Grobman, 277 AD2d 369, 370 [2000]; Sando Realty Corp. v Aris, 209 AD2d 682 [1994]).
discussed
Cited as authority (rule)
Scarano v. Scarano
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 Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]), no hearing is required where the defendant fails to swear to “specific facts to rebut the statements in the process server’s affidavits” (Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited as authority (rule)
Lynch v. New York City Transit Authority
However, the process server’s affidavit constituted prima facie proof of proper service pursuant to CPLR 308 (2) (see Olesniewicz v Khan, 8 AD3d 354 [2004]; Simonds v Grobman, 277 AD2d 369, 370 [2000]).
discussed
Cited "see, e.g."
Matter of Robinson v. Kathleen B.
LP v Okojie , 57 Misc 3d 1214[A] , 2017 NY Slip Op 51430[U] , *3 [Sup Ct, Suffolk County 2017]; see also Simonds v Grobman , 277 AD2d 369, 369 [2d Dept 2000]; see generally Matter of Jean G.S. , 59 AD3d 998 , 998-999 [4th Dept 2009]).
Retrieving the full opinion text from the archive…
Sheung Chi Yuen
v.
Staten Island University Hospital
v.
Staten Island University Hospital
Appellate Division of the Supreme Court of the State of New York.
Nov 20, 2000.
Published
—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Patterson, J.), dated September 8, 1999, which granted the separate motions of the defendants Staten Island University Hospital, Michael M. Alexiades, and Michael M. Alexiades, M.D., P. C., the defendants Howard Baruch and Seaport Orthopedic Associates, and the defendant Ching Sum Leung to dismiss the complaint for failure to prosecute, and denied their cross motion for an extension of time to file a note of issue, and (2) a judgment of the same court dated November 16, 1999, entered upon the order, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents other than Ching Sum Leung, appearing separately and filing separate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on appeal from the judgment (see, CPLR 5501 [a] [1]).
A party served with a 90-day notice pursuant to CPLR 3216 must comply with the notice by filing a note of issue or by moving, before the expiration of the 90-day period, to either vacate the notice or extend the 90-day period (see, Pirpinias v Milonas, 274 AD2d 383). In the present case, having failed to pursue either option, the plaintiffs were required to demonstrate both a justifiable excuse for their delay in responding to the 90-day notice and the existence of a meritorious cause of action (see, Vijax Corp. v Jacobs, 270 AD2d 253; Neu v Paul Realty Co., 260 AD2d 615). The plaintiffs failed to demonstrate a justifiable excuse for the delay in responding to the notice (see, Vijax Corp. v Jacobs, supra; Papadopoulas v R.B. Supply Corp., 152 AD2d 552). Therefore, the Supreme Court properly dismissed the complaint. Santucci, J. P., Sullivan, Altman and Krausman, JJ., concur.