Over 2,300 pages of testimony, legal argument and colloquy on personal jurisdiction and service of process
Issues: Validity of CPLR 308(2) substituted service * CPLR 308(4) affix-and-mail service * Whether affix-and-mail service impracticable * Whether process server exercised due diligence prior to resorting to CPLR 308(5) court-ordered service by publication * Cross-examination of process server re failure to ascertain defendant’s place of employment prior to resorting to affix-and-mail service
Buy NowIssues: Validity of CPLR 308(2) substituted service * Whether delivery of process to person of suitable age and discretion was followed by mailing * Process server cross-examined on failure to check box on affidavit of service re: follow-up mailing.
Buy NowIssues: Validity of CPLR 308(2) substituted service * Process server’s testimony re: (i) log book and field sheet as business records; (ii) NYC Dept. of Consumer Affairs recordkeeping requirements for process servers; (iii) GPS photos as part of process server’s proof
Buy NowIssues: CPLR 308(2) substituted service * Process server’s testimony re: log book, GP Sand Independent Server Record of Service as business records required by NYC Dept. of Consumer Affairs for process servers * Defendant out of the jurisdiction at time of alleged Service * Admissibility of defendant’s affidavit attesting to his absence from the jurisdiction at time of alleged service * Court’s observations re demeanor and veracity of process server, defendant, as witnesses
Buy NowIssues: CPLR 308(2) substituted service * NY General Business Law section 89-ee provision that “it shall be unlawful” for process server to fail to comply with all legal requirements for service of process * 22 NYCRR Section 208.29 provision requiring process server to bring license to Traverse Hearing * Process server cross-examined on failure to produce license at Hearing * Defendant’s motion to strike process server’s testimony for failure to comply with G.B.L. Section 89-ee and 22 NYCRR Section 208.29
Buy NowIssues: CPLR 308(4) affix-and-mail service * Defendants unrepresented at Traverse Hearing * Process server’s failure to ascertain and attempt service at defendants’ place of business prior to resorting to affix-and-mail service * Process server’s Feld Sheet silent as to follow-up mailing * Unrepresented defendant cross-examines process serverre failure to attempt to as certain defendants’ place of employment
Buy NowIssues: CPLR 308(2) substituted service * Mortgage loan servicer testifies as to residence address provided by defendant to mortgage lender in loan application and mortgage documents * Defendant denies having ever resided at that address * Service effected on Jewish person of suitable age/discretion on a Saturday * Legal argument/submissions re Saturday/Sabbath service * Testimony, legal submissions re CPLR 308(2) service when defendant has more than one address
Buy NowIssues: Process server barred by doorman from entering building to personally serve defendant or to affix papers to defendant’s door * Process server drops papers in partially open doorway * Defendant elects not to testify or call any witnesses; argues that plaintiff failed to make out a prima facie case of valid CPLR 308(2) substituted service
Buy NowIssues: CPLR 308(4) affix-and-mail service * Process server deceased * Foundation testimony for admission of Affidavit of Service into evidence (CPLR 4531) * Whether deceased process server’s Affidavit of Service demonstrated due diligence in attempting service pursuant to CPLR 308(1) and CPLR 308(2) prior to resorting to affix-and-mail service * Expert witness for defendant testifies as to standard in process serving community constituting due diligence sufficient to comply with CPLR 308(4)
Buy NowIssues: Validity of CPLR 308(4) affix-and-mail service * Process server testifies that he taped papers on defendant’s door * Defendant denies seeing papers on his door; testifies that he found papers, without indicia of mailing, in his mailbox.
Buy NowIssues: CPLR 308(2) substituted service * Process served at address provided by defendant on mortgage documents * Defendant testifies that, prior to alleged service, he informed plaintiff mortgage lender by telephone that he had moved from that address.
Buy NowIssues: CPLR 308(2) deliver-and-mail service * CPLR 308(4) affix-and-mail service * Service at apartment building with doorman * Process server unavailable to testify * Admissibility of process server’s affidavits of service under business records exception to hearsay rule * Original affidavits of service not produced at Traverse Hearing * Due diligence efforts undertaken by plaintiff’s counsel to locate unavailable process server
Buy NowIssues: CPLR 308(1) personal service via in-hand delivery to defendant * Process server’s testimony regarding operation of GPS tracker in documenting date, time and location of service * Extensive legal argument on foundation required for admissibility, as business record, of photograph imprinted with date, time and coordinates generated by GPS tracker * Defendant produced GPS timeline from his cellular phone in support of his claim that he was miles away at time of alleged service.
Buy NowIssues: CPLR 308(2) deliver-and-mail service at defendant’s place of business * Defendant out of the jurisdiction and did not appear at Traverse hearing * Manager from defendant’s place of employment, called on behalf of defendant, denied receiving the papers or knowing anyone by the name stated in the Affidavit of Service as person served * Manager cross-examined on similarity of her physical features to those of the person described in Affidavit of Service as the person who was served.
Buy NowIssues: Validity of CPLR 308(2) substituted service * Retired process server testified based solely on his Affidavit of Service and recollection of his pre-retirement business practices * Legal argument regarding admissibility of Affidavit of Service as past recollection recorded where process server is available and testifying at Traverse hearing * Cross-examination of process server on alleged history of “sewer service”
Buy NowIssues: Validity of CPLR 313 out-of-state service on defendant husband and wife in Oklahoma via CPLR 308(2) deliver-and-mail and CPLR 308(4) affix-and-mail * New York Supreme Court action against Oklahoma residents to foreclose mortgage on their New York real property * Whether Affidavit of Service of Oklahoma process server admissible pursuant to CPLR 4531 at Traverse Hearing in lieu of testimony without a showing of unsuccessful due diligence effort to secure his appearance to testify * Cross-examination of process service supervisor re Amended Affidavit of Service containing additional information not contained in original Affidavit
Buy NowIssues: CPLR 308(2) substituted service via deliver-and-mail * Methodical laying of foundation by plaintiff’s counsel for admitting twelve exhibits into evidence * Defendant testified that he never resided at service address * Defendant, in support of his claim of lack of personal jurisdiction, introduced into evidence income tax returns, correspondence from tax authorities, bank statements, and other documentary evidence.
Buy NowIssues: CPLR 308(1) service on defendant husband via in-hand delivery * CPLR 308(2) substituted service on defendant wife via delivery to husband and follow-up mailing to wife * Process server, based in Suffolk County, testified that he was not required to be licensed to serve process in Suffolk County and that he maintained no logbook, GPS tracking records or photographs * Process server cross-examined on discrepancy between his testimony and his Affidavit of Service regarding street number of defendants’ residence.
Buy NowIssues: Validity of CPLR 308(2) substituted service via delivery to building concierge and follow-up mailing to defendant * Process server testified, based on Affidavit of Service, that he left papers with concierge of defendant’s building * Affidavit of Service did not state that concierge denied process server access to defendant’s apartment * Process server testified regarding his policy and procedure for serving a defendant who resides in a doorman or concierge building * Plaintiff subpoenaed defendant to testify regarding role of concierge in controlling access to his apartment; however, defendant did not appear or present any evidence * Building manager, subpoenaed by plaintiff, testified.
Buy NowIssues: Validity of CPLR 308(2) substituted service on defendant by in-hand delivery to his wife and follow-up mailing to him * Process server did not produce his license in effect at the time of service or his notes, field sheet or logbook * Legal argument re seemingly conflicting statutory requirements regarding process server’s recordkeeping practices and record retention period * Plaintiff argued that statute required process server’s field sheet, log book and notes to be retained for three years, whereas service in question occurred some nine years prior to Traverse hearing.
Buy NowIssues: CPLR 308(1) service by in-hand delivery to defendant wife * CPLR 308(2) substituted service on defendant husband by delivery to his wife followed by mailing to defendant husband * Process Server failed to comply with the subpoena to appear for Traverse Hearing (see also, Transcript #16) * Plaintiff made application, pursuant to CPLR 4531 and over defendant’s objection, to (i) introduce process server’s Affidavit of Service into evidence as prima facie proof of proper service of Summons; and (ii) to introduce Affidavit of Service of subpoena on process server to appear for Traverse Hearing as proof of due diligence effort to secure process server’s appearance.
Buy NowIssues: CPLR 308(1) service by in-hand delivery * CPLR 308(2) substituted service Process server testifies regarding skip trace procedure and field sheets * Cross- examination of process server regarding defendant’s physical characteristics contained in Affidavit of Service * Defendant failed to appear; produced alibi witness who testified that defendant was with him elsewhere discussing business at the time defendant was allegedly handed papers by process server
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