Opinion
July 15, 1996
Appeal from the Supreme Court, Suffolk County (Cohalan, J.).
Ordered that the matter is remitted to the Supreme Court, Suffolk County, to hear and report whether the appellant was properly served with the summons and complaint, and the appeal is held in abeyance in the interim. The Supreme Court, Suffolk County, is to file its report with all convenient speed.
On appeal, the defendant contends that the Supreme Court erred in failing to conduct a hearing to resolve her claim that she was never personally served with process in this action. We agree. As a general rule, where there is a sworn denial of service by the defendant, the process server's affidavit of service is rebutted, and the plaintiff is required to establish personal jurisdiction over the defendant by a preponderance of the evidence at a hearing (see, Greenpoint Sav. Bank v. Mione, 213 A.D.2d 375; Dime Sav. Bank v. Steinman, 206 A.D.2d 404; Micalizzi v. Gomes, 204 A.D.2d 284). Moreover, the fact that the defendant had actual notice of the foreclosure action does not suffice to confer jurisdiction in the absence of the proper service of a summons and complaint (see, Macchia v. Russo, 67 N.Y.2d 592, 595; Vega v City of New York, 194 A.D.2d 537). Contrary to the plaintiff's assertion, we further note that this is not a case in which the defendant waived the defense of lack of personal jurisdiction by appearing in the action and defending it on its merits (cf., Matter of Woicik v. Town of E. Hampton, 207 A.D.2d 356). Balletta, J.P., Sullivan, Copertino and Krausman, JJ., concur.