theCPLRblog

Accord and Satisfaction

CPLR R. 3211(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

Profex, Inc. v Town of Fishkill, 2009 NY Slip Op 06320 (App. Div., 2nd, 2009)

"[T]he rule of accord and satisfaction has generally been accepted as a legitimate and expeditious means of settling contract disputes" (Horn Waterproofing Corp. v Bushwick Iron & Steel Co., 66 NY2d 321, 325). The party asserting the affirmative defense of accord and satisfaction must establish that there was a disputed or unliquidated claim between the parties which they mutually resolved through a new contract discharging all or part of their obligations under the original contract (see Merrill Lynch Realty/Carll Burr, Inc. v Skinner, 63 NY2d 590, 596; Pothos v Arverne Houses, 269 AD2d 377, 378; Trans World Grocers v Sultana Crackers, 257 AD2d 616, 617). The defendants established their respective entitlement to judgment as a matter of law on the basis of an accord and satisfaction (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557).

The bold is mine.

CPLR R. 3211(a)(5) Converted to CPLR R. 3212

CPLR R. 3211(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

CPLR R. 3212 Motion for summary judgment

Hopper v McCollum, 2009 NY Slip Op 06315 (App. Div., 2nd, 2009)

[T]he defendant interposed a verified answer. In June 2008 the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5) on the ground that the plaintiffs had received payment through their homeowners' insurance policy and were not entitled to any additional recovery from her. The Supreme Court, in effect, converted the motion to dismiss into one for summary judgment dismissing the complaint and granted the motion. We modify.

The Supreme Court properly, in effect, converted the motion to dismiss to one for summary judgment since it was made after issue had been joined (see Fischer v RWSP Realty, LLC, 53 AD3d 594, 595; Schultz v Estate of Sloan, 20 AD3d 520; Tufail v Hionas, 156 AD2d 670, 671), and the parties clearly charted a summary judgment course by laying bare their proof and submitting documentary evidence and evidentiary affidavits (see Myers v BMR Bldg. Inspections, Inc., 29 AD3d 546; Jamison v Jamison, 18 AD3d 710, 711). However, upon such conversion, the Supreme Court [*2]erred in granting the defendant's converted motion for summary judgment dismissing the complaint. Contrary to the defendant's contention, the plaintiffs are not precluded from maintaining this action against the defendant simply because they received payment from their insurance carrier (see generally Fisher v Qualico Contr. Corp., 98 NY2d 534, 538; Spectra Audio Research, Inc. v Chon, 62 AD3d 561; Corsa v Pacific Indem. Co., 52 AD3d 450, 451; Winkelmann v Hockins, 204 AD2d 623, 623-624). If the trier of facts in this matter finds the defendant liable and awards damages to the plaintiffs, then the plaintiffs' receipt of the insurance payment may be relevant as a possible setoff against the damages award (see CPLR 4545[c]; Fisher v Qualico Contr. Corp., 98 NY2d at 539-540).

While the Court notes that because issue was joined--among other things--conversion was appropriate, that is not always the case.  Consider Roche v Claverack Coop. Ins. Co., 2009 NY Slip Op 01390 (App. Div., 3d, 2009).  There the Third Department allowed for a pre-answer summary judgment motion because the parties charted their course and it "treated defendants' summary judgment motion as if issue had indeed been joined." (I took out the internal quotes).

Lately I've seen a lot of 3211 motions under subdivisions that are inapplicable.  More often than not, they are 3212 motions being masked behind 3211.

RECAP

If you spend any time on PACER, then you probably spend more money than you'd like while getting search results that you don't need.  Enter RECAP.  RECAP allows you to to get some of PACER for free. Though it isn't without its problems, it does have a few benefits (aside from the free thing).

New York County Clerk told to take it and like it.

Well, just to take it.  He doesn't really have to like it.  But he might.  He just needs to try it.

22 NYCRR § 104.1 Application
(b) The term court records shall include all documents and records that are part of the court file of each case and all books, papers, calendars, statistical schedules and reports and other records pertaining to the management of court cases.

CPLR § 3218 Judgment by confession
(b) Entry of judgment

CPLR R. 2101 Form of papers
(e) Copies

CPLR R. 2102 Filing of papers

(a) Except where otherwise prescribed by law or order of court, papers required to be filed shall be filed with the clerk of the court in which the action is triable. In an action or proceeding in supreme or county court and in a proceeding not brought in a court, papers required to be filed shall be filed with the clerk of the county in which the proceeding is brought.

(b) A paper filed in accordance with the rules of the chief administrator or any local rule or practice established by the court shall be deemed filed. Where such rules or practice allow for the filing of a paper other than at the office of the clerk of the court, such paper shall be transmitted to the clerk of the court.

(c) A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.

Gehring v Goodman, 2009 NY Slip Op 29351 (Supreme Court, New York County, 2009)

This is an article 78 proceeding. The only specific relief that petitioner seeks is an "order" directing respondent Norman Goodman, County Clerk of the County of New York (respondent), along with his agents and representatives, to accept for filing copies of affidavits that petitioner wants to file pursuant to CPLR 3218 (b). Respondents have not submitted any papers in opposition.

Petitioner submitted to respondent a copy of an affidavit by a defendant confessing judgment. According to petitioner, respondent, in interpreting CPLR 3218 (b), took the position that because the statute says "the affidavit", that means the original affidavit must be filed, and thus he would not accept a copy thereof for filing. Petitioner brought this challenge on August 18, 2009 by order to show cause on an emergency basis because the three year deadline to file the affidavit would have expired two days after the proposed order to show cause was submitted to this court. The court signed the order to show cause and made it returnable the following day.

CPLR 3218 (b) provides in part:

At any time within three years after the affidavit is executed, it may be filed with the clerk of the county where the defendant stated in his affidavit that he resided when it was executed or, if the defendant was then a non-resident, with the clerk of the county designated in the affidavit. Thereupon the clerk shall enter a judgment in the supreme court for the sum confessed. He shall tax costs to the amount of fifteen dollars, besides disbursements taxable in an action. The judgment may be docketed and enforced in the same manner and with the same effect as a judgment in an action in the supreme court.

CPLR 2101 (e) states in pertinent part: [*2]

Except where otherwise specifically prescribed, copies, rather than originals, of all papers, including orders, affidavits and exhibits may be served or filed.

CPLR 2102 (c) provides:

A clerk shall not refuse to accept for filing any paper presented for that purpose except where specifically directed to do so by statute or rules promulgated by the chief administrator of the courts, or order of the court.

Petitioner presented the affidavit to respondent for the purpose of filing the paper in order to make it part of the court record, as defined by 22 NYCRR 104.1 (b), and thus obtain a judgment by confession pursuant to CPLR 3218 (b). Contrary to respondent's position as stated by petitioner, CPLR 3218 (b) does not specify that only the original of the affidavit must be accepted for filing and does not proscribe the filing of a copy of the affidavit. The purpose of CPLR 3218 (b) is to afford a party the discretion to file the affidavit if desired. CPLR 2101 (e) allows the filing of copies of affidavits (see Lynch v Betts, 12 Misc 3d 295 [Sup Ct, Yates County 2006]), which filing under CPLR 3218 (b) is not otherwise specifically prescribed.

There is neither a statute nor rule of the chief administrator of the courts that directs respondent to refuse to accept for filing a copy of an affidavit under CPLR 3218 (b), nor has respondent shown that there is any court order that so directs him. Professor Alexander comments that the purpose of CPLR 2102 (c) is to strip clerks of any authority to reject papers offered for filing unless the refusal is directed by law, rule, or court order (Alexander, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, Civil Practice Law and Rules 2102, 2009 Pocket Part, at 283).

Therefore, pursuant to this court's August 20, 2009 decision, judgment, and order, this court has directed respondent, and his agents and representatives, to accept for filing copies of the affidavits pursuant to CPLR 3218 (b). That is all of the specific relief requested by petitioner. This court is not directing respondent as to how he should act in fulfilling his duties after he accepts the affidavits for filing.

The bold is mine.

The county clerk offered no opposition.  Why?  Well, anyone who has tried to file something in any of New York's courts has run across clerks who refuse to accept documents for a variety of reasons.  Some are legitimate and others are directly related to how early the clerk woke up in the morning.  You get the idea.  So why no response?  Because the County Clerk felt that the affidavits should be accepted (or didn't care one way or the other), and probably decided that the easiest way to deal with issue would be to leave it up to the Court.  This way, they wouldn't have to deal with any internal discord on the issue.  If a judge tells them to do it, they have to do it.

Supplemental summons not filed--CPLR R. 305(a)-->Dismissed--CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR R. 3211(a)(5) the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing. In an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and fell while working at a restaurant known as Orin's Seafood Hideaway, located at 1683 Utica Avenue in Brooklyn. She commenced this negligence action against, among others, the defendant Losquadro Ice Company, Inc. (hereinafter Losquadro), the owner of the subject premises. Losquadro commenced a third-party action against the defendant third-party defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway (hereinafter Foodsaver). The plaintiff filed an amended complaint on April 11, 2006, adding Foodsaver as a defendant in the action. In its answer to the third-party complaint, Foodsaver disclosed that it had subleased a portion of the subject premises to the appellant Utica Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served the parties and Utica with an amended third-party complaint, which joined Utica as a third-party defendant. On September 5, 2006, the plaintiff filed a second amended complaint which joined Utica as a direct defendant.

It is the filing of a supplemental summons and complaint which commences an action against a newly-joined defendant or a third-party defendant (see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee, 306 AD2d 865, 867). It is undisputed that Losquadro's amended third-party complaint was never filed with the court. Therefore, that branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to dismiss the amended third-party complaint insofar as asserted against it should have been granted.

Contrary to Utica's contention, however, it was not entitled to dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended complaint insofar as asserted against it. A claim asserted against a defendant in an amended filing may relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are "united in interest" (CPLR 203[c]; see Buran v Coupal, 87 NY2d 173; Brock v Bua, 83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both Foodsaver and Utica, demonstrated that the relationship between the two companies was such that Utica could be charged with notice of the institution of the action under this doctrine and would not be prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

The bold is mine.

Constitution says "No"

So I'm a few days late posting this. So what. I have things to do.  Important things.

Skelos v Paterson, 2009 NY Slip Op 06265 (App. Div., 2nd, 2009)

We have no quarrel with those who say that having a man of Mr. Ravitch's stature, knowledge, and experience in the office of lieutenant-governor would promote the public interest by providing help and counsel to the Governor in difficult times and by bringing much-needed stability to the government of this State. We conclude, however, that the Governor simply does not have the authority to appoint a lieutenant-governor, that his purported appointment of Mr. Ravitch cannot be reconciled with an unambiguous and contrary provision in the State Constitution, and that no considerations of the State's financial difficulties or of political strife in the Senate allow us to find authority for Mr. Ravitch's appointment where none exists.

Section 3 of article XIII of the State Constitution provides in pertinent part that "[t]he legislature shall provide for filling vacancies in office." Pursuant to that authority, the Legislature enacted Public Officers Law §§ 41, 42, and 43. Section 41 authorizes the Legislature to appoint a person "to fill" a vacancy in the office of Attorney General or Comptroller. Section 42 provides for the filling of vacancies in certain other offices, with a specific exception for the "offices of governor or lieutenant-governor" (Public Officers Law § 42[1]).

...

Accordingly, the order is affirmed insofar as appealed from. Because we recognize that this matter is one of great public import and ought to be resolved finally and expeditiously by the Court of Appeals, we dispense with the need for the Governor to move for leave to appeal to that Court and, on our own motion, grant leave.

The bold is mine.

CPLR § 901(a) Class certified; 10 is not enough, unless there is no union

CPLR § 901 Prerequisites to a class action

Kudinov v Kel-Tech Constr. Inc., 2009 NY Slip Op 06292 (App. Div., 1st, 2009)

The party seeking class certification bears the burden of establishing the criteria prescribed in CPLR 901(a) (CLC/CFI Liquidating Trust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]). This burden must be met by providing an evidentiary basis for class certification (Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313 [2007]; Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lv dismissed 99 NY2d 576 [2003], cert den sub nom Moore v American Tr. Ins. Co., 538 US 987 [2003]).

Whether a particular lawsuit qualifies as a class action rests within the sound discretion of the trial court. In exercising this discretion, a court must be mindful of our holding that the class certification statute should be liberally construed (Englade v HarperCollins Publs., 289 AD2d 159 [2001]). [*2]

Here, the evidence is sufficient to establish numerosity, without determining the precise number, given the number of projects, the certified payroll records and the testimony and affidavits regarding the number of workers potentially affected by the allegations (see, Globe Surgical Supply v Gieco Ins. Co., 59 AD3d 129 [2008]; Pesantez v Boyle Envtl. Servs., 251 AD2d 11 [1998]). While it is true that the exact number of the putative class has not been determined, and that some members of the putative class have submitted affidavits affirmatively stating that they were not aggrieved by the allegations against defendants, the number of workers alleged to have been underpaid was high enough to justify the court's exercise of its discretion in certifying the class. This is particularly true in light of the fact that many workers were not members of any union, and were of different trades than that of the main plaintiff.

Moreover, the commonality of claims predominates, given the same types of subterfuges allegedly employed to pay lower wages. The fact that different trades are paid on a different wage scale and thus have different levels of damages does not defeat certification (see Englade, at 160). The ability to resolve such inquiries by referring to payroll and other documentary evidence distinguishes this case from those in which individualized inquiries defeat commonality (see e.g. Batas v Prudential Ins. Co., 37 AD3d 320, 322 [2007]; Gaidon v Guardian Life Ins. Co. Of Am., 2 AD3d 130 [2003]).

While it is appropriate in determining whether an action should proceed as a class action to consider whether a claim has merit, this "inquiry is limited" (see Bloom v Cunard Line, 76 AD2d 237, 240 [1980]), and such threshold determination is not intended to be a substitute for summary judgment or trial.

NARDELLI, J. (dissenting in part)

...

Three projects at issue on this appeal were bonded by Fidelity and Deposit Company of Maryland. The class representative certified by the court on those projects was Alexander Kudinov, a union carpenter. He testified that aside from himself, five or six carpenters worked at P.S. 104, one worked at P.S. 114, and four or five worked at P.S. 198. Of this maximum total of 13 carpenters, 3 of them submitted affidavits stating, "I have always been paid the wages due, and all of my benefits have been paid to my union." Thus, at best, there are 10 carpenters in the aggregate on these three projects who have wage grievances. I respectfully submit that 10 does not meet the numerosity requirement required by the statute. Furthermore, when the projects are viewed on an individual basis, at best there are five other similarly situated carpenters on some of the projects, and as few as one other on the P.S. 114 project. I see no reason why resort to class action status is required to resolve any of the grievances that Kudinov or other carpenters may have regarding their wages on these particular projects.

...

Under such circumstances, where the number of people in the class is not identified, where members of the putative class have sworn that they do not have any grievances, and where the nature of the claims requires evidence on an individual basis, it is difficult to discern how a class action is a superior, or even an appropriate, vehicle for resolution of the claims.

The bold is mine. 

Looks like the controlling factor here is that there are no union workers.

Failure to follow CPLR R. 511 makes venue discretionary

CPLR R. 511 Change of place of trial

CPLR § 501 Contractual provisions fixing venue

Tatko Stone Prods., Inc. v Davis-giovinzazzo Constr. Co., Inc., 2009 NY Slip Op 06210 (App. Div., 3rd, 2009)

We note first that, having raised the issue of improper venue as an affirmative defense in the answer, Great American did not waive the issue and could thereafter rely upon this defense in seeking dismissal of the action (see Lischinskaya v Carnival Corp., 56 AD3d 116, 118 [2008], lv denied ___ NY3d ___ [June 30, 2009]). In addition, as Great American did not follow the precise statutory procedures outlined under CPLR 511 (see CPLR 511 [a], [b]), the relief sought in its application became a discretionary matter (see Callanan Indus. v Sovereign Constr. Co., 44 AD2d 292, 295 [1974])^[FN1]. While Supreme Court may have erred in deciding the matter on subject matter jurisdiction grounds (see Matter of Lucchese v Rotella, 97 AD2d 645, 646 [1983], affd 60 NY2d 815 [1983]), we find that dismissal of the complaint was nevertheless warranted based on the venue provision of the bond (see CPLR 501; see also Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d 396, 397 [2003]; Premium Risk Group v Legion Ins. Co., 294 AD2d 345, 345-346 [2002]; B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d 44, 45 [1996]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d 803, 803-804 [1978]).

"It is well established that forum selection clauses are valid absent a showing that enforcement would be unreasonable and unjust or that the clause is invalid because of fraud or overreaching" (VOR Assoc. v Ontario Aircraft Sales & Leasing, 198 AD2d 638, 639 [1993] [citations omitted]; see Brooke Group v JCH Syndicate 488, 87 NY2d 530, 534 [1996]; Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d 764, 764-765 [2008]). Here, in seeking to enforce the bond as a third-party beneficiary of it, plaintiff, in absence of any evidence of unreasonableness, fraud or overreaching (compare 3H Enters. v Bennett, 276 AD2d 965, 966 [2000], lv denied 96 NY2d 710 [2001]), is bound by its forum selection provision (see B & H Interior Contr. v Yonkers Contr. Co., 234 AD2d at 45; Buhler v French Woods Festival of Performing Arts, 154 AD2d 303, 305 [1989]; Alwinseal, Inc. v Travelers Indem. Co., 61 AD2d at 803-804; Callanan Indus. v Sovereign Constr. Co., 44 AD2d at 294; Khan Enter. Constr., Inc. v P & K Contr., Inc., 13 Misc 3d 1207[A] [2006]; Flush Metal Partition Corp. v Nuovo Corp., 57 Misc 2d 900, 901 [1968]; Frontier Excavating v St. Paul Fire & Mar. Ins. Co., 50 Misc 2d 232, 233 [1966]; see generally Harry Casper, Inc. v Pines Assoc., L.P., 53 AD3d at 765). As plaintiff has advanced unpersuasive grounds upon which this Court might disregard the forum selection provision in the bond, we affirm dismissal of the action (see e.g. Dogmoch Intl. Corp. v Dresdner Bank AG, 304 AD2d at 397; Premium Risk Group v Legion Ins. Co., 294 AD2d at 346; British W. Indies Guar. Trust Co. v Banque Internationale A Luxembourg, 172 AD2d 234, 234 [1991]; Di Ruocco v Flamingo Beach Hotel & Casino, 163 AD2d 270, 271-272 [1990]).

Particularly unpersuasive is plaintiff's claim that dismissal is improper because Great American failed to demonstrate that the subject bond was "properly authenticated." While it would have been preferable for Great American to include the entire, properly-executed bond agreement in its moving papers, we are unpersuaded that this omission was fatal to the requested relief. First, there can be no real dispute that a valid and enforceable surety bond exists; indeed, plaintiff is relying upon it for relief in the first instance. More importantly, Great American submitted an affidavit of a senior claims analyst who averred that the subject bond contained a "venue provision" which requires that this action be venued in New Jersey. The analyst attached the relevant excerpt from a copy of the bond to his affidavit. This evidence was sufficient for Great American to establish the precise language of the subject forum selection clause.

A similar (sort of) issue popped up in the Second Department not too long ago.

The bold is mine.

Overhauled the blog

Somehow it screwed up the post formatting. Sorry.

It's a work in progress.

CPLR R. 5015 motion treated as motion pursuant to CPLR R. 317

CPLR R. 2221(e) Motion for Leave to Renew

CPLR § 308 Personal service upon a natural person

CPLR R. 5015 Relief from judgment or order

CPLR § 317 Defense by person to whom summons not personally delivered

Gonzalez v City of New York, 2009 NY Slip Op 06163 (App. Div., 2nd, 2009)

The defendants proffered a reasonable justification for the failure to present the affidavit of the defendant Miguel Carvajal in opposition to the plaintiff's prior motion for leave to enter a default judgment against Carvajal and in support of their prior cross motion, inter alia, to vacate Carvajal's default in appearing in the action or answering the complaint based on the Corporation Counsel's delay in obtaining an affidavit from Carvajal (see CPLR 2221[e][2], [3]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392; Miller v Duffy, 162 AD2d 438, 439-440; Matter of Mangialino v White Haven Mem. Park, 132 AD2d 970, 971).

Service upon Carvajal was made, inter alia, by delivery of the summons and complaint to a coworker at Carvajal's actual place of business and by mailing the summons to him at his actual place of business pursuant to CPLR 308(2) (see Anderson v GHI Auto Serv., Inc., 45 AD3d 512, 513). Although the defendants' cross motion was made pursuant to CPLR 5015(a)(1), under the circumstances of this case, it may also be treated as a motion made pursuant to CPLR 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 142-143; Hospital for Joint Diseases v Lincoln Gen. Ins. Co., 55 AD3d 543, 544; Mann-Tell Realty Corp. v Cappadora Realty Corp., 184 AD2d 497, 498). Upon renewal, the defendants established that Carvajal did not receive [*2]actual notice of the summons in time to defend, he did not deliberately attempt to avoid service, and he has a meritorious defense to the action (see CPLR 317; Taieb v Hilton Hotels Corp., 60 NY2d 725, 727; Franklin v 172 Aububon Corp., 32 AD3d 454; Brockington v Brookfield Dev. Corp., 308 AD2d 498; Samet v Bedford Flushing Holding Corp., 299 AD2d 404, 405). Accordingly, upon renewal, the plaintiff's prior motion for leave to enter a default judgment against Carvajal was properly denied and the defendants' prior cross motion to vacate Carvajal's default and to compel the plaintiff to accept the amended answer was properly granted.

Wells Fargo Bank, NA v Chaplin, 2009 NY Slip Op 06179 (App. Div., 2nd, 2009)

The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff (see Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d 343; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d 351; Frankel v Schilling, 149 AD2d 657, 659). Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service (see Household Fin. Realty Corp. of N.Y. v Brown, 13 AD3d 340; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Frankel v Schilling, 149 AD2d 657, 659; see also New Is. Invs. v Wynne, 251 AD2d 560). However, where there is a sworn denial that a defendant was served with process, the affidavit of service is rebutted, and the plaintiff must establish jurisdiction at a hearing by a preponderance of the evidence (see Mortgage Access Corp. v Webb, 11 AD3d 592, 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344; Kingsland Group v Pose, 296 AD2d 440; Balancio v Santorelli, 267 AD2d 189; New Is. Invs. v Wynne, 251 AD2d 560; Bank of Am. Nat. Trust & Sav. Assn. v Herrick, 233 AD2d at 352). [*2]

Here, the plaintiff allegedly effected service upon the appellant pursuant to CPLR 308(2) on April 23, 2007, by delivering the summons and complaint to a person of suitable age and discretion, who was identified as Marilyn Matheson, at the appellant's residence in Queens. In support of her motion, in effect, to vacate her default in appearing or answering the complaint, the appellant submitted an affidavit from Matheson averring that the summons and complaint had never been delivered to her, and that she was in Pawling, New York, in April 2007. Although Matheson's affidavit did not specify that she was in Pawling on April 23, 2007, when process allegedly was delivered to her in Queens, the appellant submitted additional evidence to substantiate her claim that Matheson was in Pawling that day, including a letter from a physician who treated Matheson for flu symptoms. The appellant's submissions also indicated that Matheson's physical appearance varied significantly from the description set forth in the affidavit of service. Under these circumstances, the appellant is entitled to a hearing on the issue of whether service was properly effected pursuant to CPLR 308(2) (see Zion v Peters, 50 AD3d 894; Mortgage Access Corp. v Webb, 11 AD3d at 593; Bankers Trust Co. of Cal. v Tsoukas, 303 AD2d at 344). Thus, we remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the appellant was properly served and thereafter for a new determination of the motion to vacate.

The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to reargue must be dismissed, since no appeal lies from an order denying reargument. The appeal from so much of the order dated June 5, 2008, as denied that branch of the appellant's motion which was for leave to renew must be dismissed as academic in light of our determination on the appeal from the order dated December 4, 2007.

The bold is mine.