Claiming “I Wasn’t Served” is Not Enough; Defaulting Defendant; Traverse Hearings.

March 9, 2023by Jeffrey Davis

Failing to serve a defendant in a lawsuit means the Court does not have personal jurisdiction over that defendant. As such, issues over whether or not a party was properly served can be a critical procedural hurdle for any lawsuit. However, as a defendant, simply claiming you were not served is usually not enough. You should indicate specific facts that establish your claim that you were not served.

In order to establish a traverse claim, a Defendant must specifically state the facts that establish its claim.  See Udell v. Alcamo Supply & Cintr. Corp., 275 A.D.2d 453 (Facey v. Heyward, 244 A.D.2d 452); De La Barrera v. Handler, 290 A.D.2d 476 (2nd Dept. Dept. 2002); American Sav. & Loan Assn. v. Twin Eagles Bruce, 208 A.D.2d 446 (1st Dept. 1994).

The courts have consistently held that a “mere denial of service” is not enough to challenge personal jurisdiction.  See JP Morgan Chase Bank, N.A. Thomas, Slip  Op 30193(U) index # 6593-2007 (Supreme Ct. Nassau Cty 1-22-2009); Slimani v. Citibank, 47 A.D.3d 489, 849 N.Y.S.2d 541 (App. Div. First Dept. 2008), Mortgage Electronics v. Gibbs, NY Slip Op 31653(U) (Supreme Ct Kings Cty 5-14-2007); and National Mtge v. Rick Mar Constr, 138 Misc.2d 316, 523 N.Y.S.2d 963 (Supreme Ct. Kings Cty 1988).

The plaintiff usually has the Summons and Complaint served by a process server. The process server submits an affidavit which indicates the defendant that was served, the manner of service, and the date and time where the defendant was served. The process server’s affidavit is presumed to be gold. It is on the defendant to prove otherwise or raise serious doubts as to the facts stated in the process server’s affidavit.

This means to succeed on a claim that you were not served (which is usually done through what is called a “traverse hearing”), to challenge a process server’s affidavit, you should have evidence that you were not at the location where the plaintiff claims you were served at the date and time they claim you were served, or evidence that wha the process server has stated in his affidavit of service is physically impossible.