Summary
noting that "it is well-established that CPLR 308 requires strict compliance"
Summary of this case from Johnson v. Quik Park Columbia Garage CorpOpinion
February 21, 1995
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is affirmed, with costs.
It is well-established that CPLR 308 (2) requires strict compliance and that the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made (see, Foster v. Cranin, 180 A.D.2d 712; Frankel v Schilling, 149 A.D.2d 657; Brownell v. Feingold, 82 A.D.2d 844). In this case, the hearing court was presented with a pure credibility question with reference to (1) whether the process server personally served a natural person of suitable age and discretion at the appellant's actual place of business, and (2) whether the process server properly addressed the envelope used in effectuating the mailing aspect of the service (see, CPLR 308). The hearing court resolved this credibility question against the process server, finding that the plaintiff had failed to effectuate proper service on the appellant. The hearing court's credibility determination is entitled to substantial deference on appeal (see, Avakian v. De Los Santos, 183 A.D.2d 687; Nagib v. Tolette-Velcek, 133 A.D.2d 72) and will not be disturbed unless it is against the weight of the credible evidence (see, Nagib v. Tolette-Velcek, supra). On this record, we find no basis to disturb the hearing court's determination. Ritter, J.P., Pizzuto, Friedmann and Goldstein, JJ., concur.