A process server said he served my wife legal papers on 12/12/2013 at 3:44pm, is this outside Nonworking hours 6:01 p.m-10:30pm

Asked 6 months ago - Deer Park, NY

We feel the process server lied (no one at the home fit the description in the affidavit of service) and would request a traverse hearing to establish "lack of jurisdiction" in order to vacate the default judgment. In addition to no one fitting the description at the home he stated he served her on October 12th a Saturday at 3:44pm. New York State case law holds that the process server must make an attempt at personal delivery outside normal working hours (in the morning 6 to 8, and in the evening 6-9) so would 3:44pm be considered outside normal working hrs?

Additional information

We know he lied because no one fits the description in his affidavit of service. I am also trying to find out about the hrs of service. New York State case law holds that the process server must make an attempt at personal delivery outside normal working hours (in the morning 6 to 8, and in the evening 6-9) so would 3:44pm be considered outside normal working hrs?

Attorney answers (5)

  1. Gregory A. Goodman

    Pro

    Contributor Level 5

    2

    Lawyers agree

    Answered . You should contact an attorney skilled in this area of law as soon as possible. From the facts you have given, it sounds like you can challenge personal jurisdiction. However, even if you weren't served properly, you are now on notice, so you need to act quickly. If you do a motion or Order to show cause properly, your case could be dismissed for lack of personal jurisdiction, without the need of a traverse hearing. It depends on several other factors that your attorney would want to know about.
    good luck.

  2. Michael Byk

    Contributor Level 14

    2

    Lawyers agree

    Answered . What does the affidavit of service say ? What method of service was utilized ?

  3. Thomas Alan Holman

    Contributor Level 12

    1

    Lawyer agrees

    Answered . I would have a number of questions (like the other attorneys trying to answer your inquiry). That said, service of process could have made on the party but an acceptable alternative is service on a person of suitable age and discretion. Good luck in resolving this situation.

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  4. David Michael Kasell

    Pro

    Contributor Level 13

    1

    Lawyer agrees

    Answered . If you want to challenge that service was proper, you should move to dismiss on the basis of lack of personal jurisdiction. Be sure to provide lots of specific information so that it is not just a bald denial of in proper service. Your question indicates that you are willing to dig a little bit deeper into the matter, so I would suggest you do so and make sure you provide all of the facts that would entitle you to a traverse hearing and that you specifically request one as an alternative relief to dismissal.

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  5. Eric Edward Rothstein

    Contributor Level 20

    Answered . How does the process server claim to have made service? Unless it's nail and mail the process server didn't have to make more than one attempt.

    The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal... more

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