Opinion
July 1, 1996
Appeal from the Supreme Court, Suffolk County (Underwood, J.).
Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, the complaint is reinstated, and the affirmative defense of lack of personal jurisdiction is dismissed.
We agree with the plaintiff that the Supreme Court erred in dismissing the complaint. The record demonstrates that the unambiguously-worded, first affirmative defense set forth in the answer referred to a single "non-served defendant". Thus, it did not afford an adequate basis for the defendants' subsequent motion to dismiss the complaint for improper service as to all of the defendants ( see generally, Wiesener v. Avis Rent-A-Car, 182 A.D.2d 372; Hatch v. Tu Thi Tran, 170 A.D.2d 649; Boswell v. Jiminy Peak, 94 A.D.2d 782; Osserman v. Osserman, 92 A.D.2d 932). Moreover, the defendant Shepard Lane, while acting as the defendants' former counsel, conceded in a letter that substituted service had been made upon the individual defendants ( see, e.g., Schottin v. Haque, 179 A.D.2d 1049; Yanni v. Chopp, 130 A.D.2d 489; Commonwealth Metal Corp. v. Paragon Auto Radiator Corp., 128 A.D.2d 751). In any event, the evidence submitted by the plaintiff, including the affidavits of service and the credible testimony of the process servers ( see generally, Black v. Pappalardo, 132 A.D.2d 640; Rowlan v. Brooklyn Jewish Hosp., 100 A.D.2d 844), constituted prima facie proof of valid service ( see, Sando Realty Corp. v. Aris, 209 A.D.2d 682; Genway Corp. v. Elgut, 177 A.D.2d 467) which the defendants' conclusory claims failed to rebut ( see, e.g., Ruskin, Moscou, Evans Faltischeck v. Beal, 212 A.D.2d 687; Dean v. Sarner, 201 A.D.2d 770; European Am. Bank v. Abramoff, 201 A.D.2d 611; Public Adm'r of County of N.Y. v. Markowitz, 163 A.D.2d 100). Miller, J.P., O'Brien, Goldstein and McGinity, JJ., concur.