-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.
-Supervisor of process service agency testified as to skip tracing, Social Security Number verifier, and other methods utilized to locate defendants.
-Plaintiff rested on first day of Hearing after testimony of process service supervisor without any testimony or other evidence of due diligence effort to secure appearance of out-of-state process server.
-Legal argument as to whether plaintiff should be permitted on second day of Hearing, held after 40-day adjournment, to reopen case to adduce testimony of due diligence efforts made between first and second day of Hearing to secure appearance of out-of- state process server.
-Cross-examination of process service supervisor re due diligence efforts to secure appearance of out-of-state process server to testify, including, inter alia, adequacy of skip trace search.
-Cross-examination of process service supervisor re Amended Affidavit of Service containing additional information that person served confirmed (i) service address was defendants’ residence and (ii) neither defendant was in military service.
-Cross-examination of process service supervisor re post office response to Change of Address and Box Holder Information Request.
-Admissibility of Affidavit from defendant wife’s father, who was allegedly served in Oklahoma on behalf of defendants pursuant to CPLR 308(2) via deliver-and-mail, that he was unable to testify at Traverse Hearing due to illness and averring that he was never handed any legal papers as claimed by Oklahoma process server.
-Defendant wife’s father testified via skype, after 40-day adjournment, that service address was his home and that neither defendant ever resided there. Further, contrary to the claim of in-hand delivery contained in the Oklahoma server’s Affidavit of Service, he never met the server and the papers were found on his doorstep.
-Defendant wife testified that the service address was never her home.
-Process service supervisor (direct examination; cross-examination; redirect exam; recross exam)
-Voir dire examination of process service supervisor re Affidavit of Non-Service initially received from Oklahoma process server.
-Voir dire examination of process service supervisor re due diligence email communications with Oklahoma process server during 40-day adjournment between first and second day of Traverse Hearing.
-Defendant wife’s father (direct examination; cross-examination; redirect examination)
-Defendant wife (direct examination; cross-examination; redirect examination)