Opinion
May 2, 1994
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the appeal from the order entered August 4, 1992, is dismissed, as that order was superseded by the order entered October 22, 1992, made upon reargument; and it is further,
Ordered that the order entered October 22, 1992, is reversed insofar as appealed from, the order entered August 4, 1992, is vacated, and the matter is remitted to the Supreme Court, Westchester County, for a hearing and new determination on the motion in accordance herewith; and it is further,
Ordered that the appellant is awarded one bill of costs.
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 (Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139). In the present case, whether or not service upon a person of suitable age and discretion at the defendants' residence was properly accomplished pursuant to CPLR 308 (2) clearly turns upon issues of credibility, which should be determined only after a hearing (see, Frankel v. Schilling, 149 A.D.2d 657, 659). Bracken, J.P., Miller, Copertino, Santucci and Altman, JJ., concur.