I had a traverse hearing in NYC yesterday. The judge did not dismiss the case even though the processing server was not there. What he did decide was for the collections lawyer to prepare an opposition to the motion within two weeks and for me to write in letter to him why I feel this case should be dismissed. I need help. This account was closed in 2002. The last activity was on this account was in 2001. I wasn't ever served papers for this judgement and the stature of limitations according to New York State law is 6 years. Is this fair for the judge to do this in a traverse hearing?

ScottGem

Sounds fair to me. In a traverse hearing the defendant has to prove they didn't receive service. Unless they can provide such proof the the process server's affadavit is considered proof and server's testimony may not be needed. Basically, NY law is stacked up on the side of the process server.

Why do you claim you were never served? When was the original suit filed? As long as it was originally filed within the SOL, then its valid. Even if its found that there was Invalid Service, the fact that the suit was originally filed within the SOL means it can be refiled now that they can issue proper service.

JudyKayTee

Once again Scott beat me to it! In my area the Affidavit of Service stands UNLESS the person (allegedly) served has proof that service was not possible. A simple "I wasn't served" doesn't work.

And if service is thrown out the papers are usually served again right there in the Courtroom.