Harvey v. Zampieri

— Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following Memorandum: Plaintiffs complaint alleges causes of action in false arrest, false imprisonment, and malicious prosecution based upon defendant’s identification of him from photographs as one of the persons who participated in a robbery of the store at which defendant worked. Plaintiff was arrested and spent a week in jail. The charges were ultimately dismissed.

The court erred by denying summarily defendant’s motion to dismiss plaintiff’s complaint or, in the alternative, to be relieved of her default. Defendant submitted an affidavit denying that she was personally served with a summons and plaintiff presented an affidavit of the process server indicating that he served the summons upon defendant. Where, as here, defendant presents a sworn statement denying personal service, it is well settled that the jurisdictional issue cannot be resolved upon affidavits alone (see, Cadin Contr. v Rich Agency, 158 AD2d 442; Frankel v Schilling, 149 AD2d 657, 659; Adames v New York City Tr. Auth., 126 AD2d 462; Cranesville Block Co. v Carpenter, 88 AD2d 1015). Consequently, we remit the matter to Supreme Court to hold a hearing to determine whether personal service was effected.

Should Supreme Court determine that personal service was effected upon defendant, we conclude, based upon our review of the record, that defendant should be relieved of her default. Defendant provided a reasonable excuse for the default, the delay was not excessive, and defendant’s sworn assertions that she identified plaintiff in good faith and without malice demonstrate a meritorious defense to the allegations of the complaint (see, Reeves v Manufacturers Hanover Trust Co., 117 AD2d 789, lv dismissed 68 NY2d 803; Steams v New York City Tr. Auth., 24 Misc 2d 216, 217, affd 12 AD2d 451). (Appeal from Order of Supreme Court, Monroe County, Curran, J.— Vacate Default Judgment.) Present — Callahan, J. P., Doerr, Denman, Green and Lowery, JJ.