Second Department: In Motion Leading To Incarceration For Contempt, No Hearing On Service In The Absence Of Specific Sworn Rebuttal Of Service

In Scarano v Scarano 2009 NY Slip Op 04410 the defendant father was found by the Supreme Court, Nassau County to be in contempt for his failure to keep to the terms of a child support agreement.

The defendant appealed the decision on the basis that there was insufficient proof of personal service of the order to show cause and the motion leading to the finding of contempt, and that a hearing on the issue of personal service was required.

The Second Department found that the defendant's affidavit evidence, which did not specifically deny service as sworn by the process server, was not enough to require a hearing on service:

A process server's affidavit of service constitutes prima facie evidence of proper service (see Matter of de Sanchez, 57 AD3d 452, 454; NYCTL 1997-1 Trust v Nillas, 288 AD2d 279). Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing (see Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 139), no hearing is required where the defendant fails to swear to "specific facts to rebut the statements in the process server's affidavits" (Simonds v Grobman, 277 AD2d 369, 370). Here, the defendant's affidavit was insufficient. Since he never denied the specific facts contained in the process server's affidavit, no hearing was required.

Practice Note: With respect generally to service in matrimonial enforcement proceedings, and in contempt proceedings, counsel are reminded of Domestic Relations Law 245 and Judiciary Law 756.