A primer on 5015(a)(1)August 4, 2019

Pierre J. Renelique Physician, P.C. v Allstate Ins. Co., 2019 NY Slip Op 29225 (App. Term 2d Dept. 2019)

“As the basis for its claim of a reasonable excuse, defendant contended that it had not received process. However, absent from defendant’s moving papers was any affidavit by the person who had allegedly been served denying service or, for example, setting forth whether that person recalled having received the service in issue and, if he did, what had happened to those papers, or, if he could not recall whether he had received the papers, setting forth the usual business practices and procedures he employed upon the receipt of process. Nor was there an affidavit explaining why defendant did not proffer an affidavit from that person. Rather, defendant submitted only an affidavit by its claim representative, who merely stated that defendant did not have a record of having received process in this matter and that, if process had been received, it would have been recorded in defendant’s computer system in accordance with defendant’s business practices and procedures, which the affidavit set forth, but that no such record existed”.

The lesson here is when denying service, it will take more than the litigation representative to allege an absence of service. I think the inquiry is probably different when service is through DFS.

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