[zaybay]

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 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]

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.

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.

[upstatelawyer]

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.

This doesn't sound correct at all. If the judge has ordered a Traverse hearing, that means there is already doubt that the court has jurisdiction over the Defendant. If she has shown that it is possible she was not served at the Order to Show Cause hearing (like the affidavit says she is black, 5'1" 90lbs and she is actually a white woman 5'7" 135 lbs) then a Traverse hearing is ordered. The burden is on the PLAINTIFF to prove that she was served. This happens by having the process server come in and testify that "yes I served that person, that is the person I remember handing these papers to or any other details he remembers from the service". If the server doesn't show up, the Plaintiff can ask for a dismissal of the action without prejudice and resue the Defendant, but the judge should dismiss.

This isn' a matter of upstate courts being different than downstate courts, that is the law. Look up the CPLR or read Siegel on Traverse Hearings.

[JudyKayTee]

This doesn't sound correct at all. If the judge has ordered a Traverse hearing, that means there is already doubt that the court has jurisdiction over the Defendant. If she has shown that it is possible she was not served at the Order to Show Cause hearing (like the affidavit says she is black, 5'1" 90lbs and she is actually a white woman 5'7" 135 lbs) then a Traverse hearing is ordered. The burden is on the PLAINTIFF to prove that she was served. This happens by having the process server come in and testify that "yes I served that person, that is the person I remember handing these papers to or any other details he remembers from the service". If the server doesn't show up, the Plaintiff can ask for a dismissal of the action without prejudice and resue the Defendant, but the judge should dismiss.

This isn' a matter of upstate courts being different than downstate courts, that is the law. Look up the CPLR or read Siegel on Traverse Hearings.

This isn't my understanding and I own/operate a process service company in NYS -

A Traverse Hearing is held when a defendant/respondent claims he/she was never served in accordance with the law (personal service, service on a responsible party, nail and mail).

A Judge presides over the hearing (of course).

The respondent/defendant establishes that he/she was NOT served by introducing whatever evidence is available (incluidng statements of witnesses that alleged personal service was not accomplished because respondent/defendant was in another place at the time service is alleged or whatever the proof is).

The process server can be subpoenaed, of course, but the Affidavit of Service stands. If you serve enough papers it's hard to recall the details and so - the Affidavit of Service is the legal proof.

It is my understanding that the PLAINTIFF doesn't prove the Defendant WAS served; the Defendant proves she was NOT.

Please give your citation.

[ScottGem]

This doesn't sound correct at all. If the judge has ordered a Traverse hearing, that means there is already doubt that the court has jurisdiction over the Defendant.

A traverse hearing has nothing to do with whether the court has jurisdiction. Whether a court has jurisdiction or not depends on whether that court is empowered to rule on the case in point. For example, you wouldn't file a suit in Family Court to collect on a loan.

Every bit of info I could find states the use of the term traverse hearing is not widely used anymore, but where it is used refers to a denial of service.

The burden is on the PLAINTIFF to prove that she was served. ... the Plaintiff can ask for a dismissal of the action without prejudice and resue the Defendant

Was this a typo? Because the plaintiff is not served in a suit, only the defendant is served.

Please do produce some citation to back up your information, because everything that I could find shows I'm correct and your post is incorrect.

[JudyKayTee]

I will add that it makes no financial sense - if upstatelawyer is correct - for the Plaintiff's firm to pay me (as the process server) a minimum of 4 hours as an expert witness to prove that the papers WERE properly served. It would be a never ending "game" played by Defendants and a cash cow for me.

It DOES make sense that the DEFENDANT proves he/she was NOT served. Of course, if the Defendant wants to attempt to discredit my sworn Affidavit he/she is perfectly welcome to pay me 4 hours at my expert fee. Otherwise, I submitted a sworn Affidavit of Service and it stands.

It's the Defendant's motion so the Defendant is in the driver's seat (so to speak).

I might add I have NEVER lost an argument when it came to whether process was legally/appropriately served - never!

[upstatelawyer]

A traverse hearing has nothing to do with whether the court has jurisdiction. Whether a court has jurisdiction or not depends on whether that court is empowered to rule on the case in point. For example, you wouldn't file a suit in Family Court to collect on a loan. .

ACTUALLY, what you have described is subject matter jurisdiction. Subject Matter Jurisdiction is the courts ability to hear the case. There is also Personal Jurisdiction, that has to do with the court's authority to bind a particular party to its judgment. The Defendant is subject to it when she is served properly. A traverse hearing is exactly that, it is to determine if the court has personal jurisdiction over the defendant because there is a question of service.

Again, I am only speaking to New York State law because that is where I practice. If you work in another state, then I have no idea.

What would you like me to site? The entire Civil Practice Law and Rules? Read David D. Siegel on New York Practice he covers the different types of jurisdiction quite well.

[upstatelawyer]

This isn't my understanding and I own/operate a process service company in NYS

Owning a process serving company does NOT qualify you to give legal advice.

As a general rule, "a proper affidavit of a process server...is sufficient to support a finding of jurisdiction" (Skyline v. Ambrose 117 A.D.2d 113). "Where, however... there is a sworn denial of service by the defendant, the affidavit of service is rebutted and THE PLAINTIFF must establish jurisdiction by a preponderence of the evidence at a hearing (emphasis added) (Also the Skyline case). That is one case, there is another Elm Mgmt Co that is similar.

Upstate (3rd Department), this is a problem I run into where process servers think their sworn affidavit is enough, so they do not keep notes or anything else. When the defendant (and if they are pro se the judge will usually be easier on them) makes a sworn statement saying they have not been served and gives a good reason (like the process server says they personally served me, but they did not because I do not match the personal description given in the affidavit) the judge holds a Traverse Hearing to determine if Personal Jurisdiction (not subject matter) was obtained. The burden is on the Plaintiff (really the process server) to prove they served THAT person. "Yes I recognize her" "This is what her house looks like" "Here is the log I keep" etc.

Mind you, *I* am not providing you with legal advice here, nor should you rely on anything I have said as creating any sort of attorney/client relationship.

[JudyKayTee]

Owning a process serving company does NOT qualify you to give legal advice.

As a general rule, "a proper affidavit of a process server...is sufficient to support a finding of jurisdiction" (Skyline v. Ambrose 117 A.D.2d 113). "Where, however...there is a sworn denial of service by the defendant, the affidavit of service is rebutted and THE PLAINTIFF must establish jurisdiction by a preponderence of the evidence at a hearing (emphasis added) (Also the Skyline case). That is one case, there is another Elm Mgmt Co that is similar.

Upstate (3rd Department), this is a problem I run into where process servers think their sworn affidavit is enough, so they do not keep notes or anything else. When the defendant (and if they are pro se the judge will usually be easier on them) makes a sworn statement saying they have not been served and gives a good reason (like the process server says they personally served me, but they did not because I do not match the personal description given in the affidavit) the judge holds a Traverse Hearing to determine if Personal Jurisdiction (not subject matter) was obtained. The burden is on the Plaintiff (really the process server) to prove they served THAT person. "Yes I recognize her" "This is what her house looks like" "Here is the log I keep" etc.

Mind you, *I* am not providing you with legal advice here, nor should you rely on anything I have said as creating any sort of attorney/client relationship.

Where do you see that I am giving legal advice and you are not? I see us both giving opinions. You may wish to read the rules of the site. Quite frankly, I am rather surprised by your open hostility - perhaps you're a trial Attorney and it's in your blood.

At any rate, it's unnecessary to make personal attacks on this site. You aren't trying a case here. You are "discussing" (or attempting to discuss) a legal issue. For that matter, assisting people here causes them NOT to have to go into your office for advice.

I also NEVER said I don't keep books or records. You may want to reread what I originally posted. I said my Affidavit "usually" suffices. I never said I have no backup. Further, I've NEVER seen the "yes, I recognize her" legal argument prevail in Court. You apparently have no idea just how many papers "I" serve a year. If I ever testified, "Yes, I recognize her" my testimony would immediately be dismissed as improbable.

I also never said my life began and ended when I opened the process service business. I wasn't wandering around in the woods before that, clueless and uneducated.

[ScottGem]

ACTUALLY, what you have described is subject matter jurisdiction. Subject Matter Jurisdiction is the courts ability to hear the case. There is also Personal Jurisdiction, that has to do with the court's authority to bind a particular party to its judgment. The Defendant is subject to it when she is served properly. A traverse hearing is exactly that, it is to determine if the court has personal jurisdiction over the defendant because there is a question of service.

Ok, You are correct there. I was referring to subject matter jurisdiction and a traverse hearing is about personal jurisdiction. But that doesn't make what I originally stated incorrect as you said. I said:
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.

I see nothing in any of the research I've done that shows that as an incorrect statement. This is a typical example:
The respondent/defendant will have to establish that they were not served by introducing evidence (ie. testimony of witness(es) who could support an alibi, documentary evidence that would show that you were in another place at the time --passport records, travel records, etc.)

From here: Review our Ask a Lawyer Q&A Archive on Lawyers.com

What would you like me to site? The entire Civil Practice Law and Rules? Read David D. Siegel on New York Practice he covers the different types of jurisdiction quite well.

By cite, I mean a link to a WEB cite or specific statute that says want you claim. Just as I did above. If I'm wrong about something I want to know I'm wrong and if proven wrong, I will acknowledge it, like I did above. I researched the terms subject matter and personal jurisdiction and you were correct there. But all my research backs up what I said initially.

[JudyKayTee]

By cite, I mean a link to a WEB cite or specific statute that says want you claim. Just as I did above. If I'm wrong about something I want to know I'm wrong and if proven wrong, I will acknowledge it, like I did above. I researched the terms subject matter and personal jurisdiction and you were correct there. But all my research backs up what I said initially.

I'd also like more info in a non-confrontational manner. I do get called to testify about service and I would like to know what the "rules" are. If I am wrong (and my Attorney has advised me incorrectly) I would like to know about it.

[upstatelawyer]

[QUOTE=ScottGem;1628115]Ok, You are correct there. I was referring to subject matter jurisdiction and a traverse hearing is about personal jurisdiction. But that doesn't make what I originally stated incorrect as you said. I said:
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.

I see nothing in any of the research I've done that shows that as an incorrect statement. This is a typical example:
The respondent/defendant will have to establish that they were not served by introducing evidence (ie. testimony of witness(es) who could support an alibi, documentary evidence that would show that you were in another place at the time --passport records, travel records, etc.)

Okay. I didn't explain myself very well. What I meant was, yes, once the Defendant has shown some sort of "proof" (and I have seen judge accept something as simple as the Defendant saying "they couldn't have served me at that time - I was at work!") THEN it is on the Plaintiff to prove they DID make the service. That entails hiring the process server to come in and testify. Which, as you know is hard, especially when process servers serve thousands of people a year! I didn't mean to imply that you or anyone else doesn't keep good records. *I* just have personally put process servers on the stand and they have no clue. The judge asks them if they keep a log or anything, they say no, and the judgement gets vacated.

I had the opposite happen today. My process server showed up, with notes on papers he served almost two years ago, he recognized the defendant and was all ready to testify... and then we settled the case. It was a bummer because I was looking forward to questioning him and to crossing the defendant ( she had been very hostile to my client and was threatening to sue the process server and all sorts of other crazy stuff)!

[upstatelawyer]

I'd also like more info in a non-confrontational manner. I do get called to testify about service and I would like to know what the "rules" are. If I am wrong (and my Attorney has advised me incorrectly) I would like to know about it.

I didn't intend to be confrontational, except that it sounded like you WERE trying to give legal advice based on the fact that you own a process serving company. That isn't really a good idea, especially when in my opinion the advice you were giving wasn't quite correct.

As for citations, I am sure you are familiar with CPLR 308 (1) - Personal Delivery of a Summons, CPLR 308 (2) Deliver-and-Mail, and CPLR 308 (4) Affix-and-mail (or "nail and mail") but those can be a pain to read, so I suggested Siegel's "Hornbook" on New York Practice for a more in-depth explanation. There must be other books out there too, but he is considered the "Grandfather" of Civil Procedure in NYS.

Although it shouldn't be (and I am guessing here) there could be different ways this is treated in different courts. I know Albany City Court is very quick to order a Traverse hearing and to vacate a judgment/dismiss a case if the process server does not show up to testify. Maybe in a larger city court where judges have heard every excuse under the sun from Defendants they are less likely to do that. I can't say.

[ScottGem]

Look, you seem to have a lot of knowledge and can be a good asset to this site. But my problem here is that you have labeled advice that I and Judy gave as incorrect and have given nothing to show that it was, in fact, incorrect.

Again, here is the advice in question:
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.

Now are you saying (and if so, please give an exact citation) that the defendant does not have to first show some proof they were not served. I've given at least one link to support my statement. I haven't seen anything specific from you.

If you wanted to expand on what I said, that's one thing. But if you are going say something is not correct, then you need to prove it.

As for Judy giving legal advice, she wasn't, she was simply agreeing with what I said.

Lets also keep in mind that we were answering the OP's question which was whether the judge's actions were fair. What the judge did was continue the traverse hearing giving the OP time to document that he was not served properly.

[JudyKayTee]

I didn't intend to be confrontational, except that it sounded like you WERE trying to give legal advice based on the fact that you own a process serving company. That isn't really a good idea, especially when in my opinion the advice you were giving wasn't quite correct.

It appears you are accusing me of giving legal advice. It also appears that you are advising me that this "isn't really a good idea."

You know NOTHING about me other than the fact that I own a process service company - absolutely nothing.

I see no problem speaking from education and experience, no problem at all. If my postings present a problem for you I would suggest we continue the conversation in one of the forums. I also state that the OP must retain an Attorney in order to receive binding legal advice. I notice you don't even bother with that so I would assume you ARE giving binding legal advice on an internet board - as an Attorney.

Dangerous practice.