Affidavit of Service Proves Court Papers Were Delivered

Landlord sued to evict tenant for nonpayment of rent. Although he filed an answer in court using the housing court's preprinted form, tenant claimed that he never received a copy of landlord's notice of petition. He asked the court to dismiss the case for this reason.  The owner of the process serving company that served landlord's court papers testified in court that the individual process server who delivered the papers had left the company, moved out of state, and not responded to the owner's request to appear in court. But the owner presented a copy of the affidavit of service, the process server's log book, and a certified mail receipt dated Sept. 8, 2011, all showing that the papers were delivered. Tenant testified only that he came to court on Sept. 15, 2011, to file an answer to landlord's petition because landlord was trying to remove him from the apartment. He presented no rebuttal testimony to the process server's documents. The court ruled against tenant. The process server's affidavit was evidence that the papers were delivered, and tenant's mere conclusory denial of receipt was insufficient to overcome the presumption that delivery was proper. Although held, a traverse hearing wasn't required in this case.

Sedgwick Avenue Realty Associates LLC v. Torres: 38 Misc.3d 1212(A), 2013 NY Slip Op 50080(U) (Civ. Ct. Bronx; 19/13; Lehrer, J)