Presiding Justice Hector LaSalle
In this proceeding seeking to recover on four promissory notes, Albany Law School alleged Young defaulted on federal student loans by failing to make requisite payments. After Young failed to appear or answer the complaint, the school served a notice of inquest upon him by first class mail. He moved to vacate his default, seeking leave to serve an answer, and dismissal of the complaint. Young alleged he was not properly or personally served with the summons and complaint. He argued he had a meritorious defense to the action in that the law school failed to timely commence the action. The panel noted a process server’s affidavit generally established a prima facie case as to the method of service, and gave rise to a presumption of proper service. Yet, a defendant’s sworn denial of receipt of service containing specific facts to rebut the statements in the process server’s affidavit rebutted the presumption of proper service established by the affidavit, and necessitated an evidentiary hearing. In light of Young’s denial of receipt of the summons and complaint, a hearing was required to determine if the process server acted with due diligence before resorting to "nail and mail" service. Denial of Young’s motion was vacated, and remitted for a new determination after a traverse hearing.
