Practice Management Associates, Inc. v. Bambara

In an action to enforce a foreign judgment made by notice of motion for summary judgment in lieu of complaint pursuant to CPLR 3213, the plaintiff appeals from an order of the Supreme Court, Rockland County (Meehan, J.), dated February 18, 1993, which, after a hearing, dismissed the action pursuant to CPLR 3211 (a) (8). 913 Ordered that the order is affirmed, with costs. At a hearing on February 3, 1993, the plaintiff’s sole witness, James Nelson, who allegedly served the defendant on November 27, 1989, with process in the action which resulted in the judgment sought to be enforced, acknowledged that in December 1991 following his retirement, he discarded sill his log books and notes relating to the more than 20,000 occasions on which he attempted service of process over the course of over 15 years. The only documentary evidence of the service which was still in existence at the time of this hearing was an affidavit of service which indicates only that on the date specified therein, Nelson “served a true copy of the summons and complaint in this action on Paul Bambara, who is either the Defendant to this action or a member of his/her household who is over the age of 15 years, and explained the contents thereof to that person”. The affidavit did not contain any description of the person served. While Nelson did testify that he remembered serving the defendant himself, his representation that he had the ability to independently recall explicit details of an unremarkable, routine event which had taken place over three years earlier may reasonably be viewed with some skepticism (cf., Rowlan v Brooklyn Jewish Hosp., 100 AD2d 844, 845). We accordingly conclude that the court’s determination discrediting the witness’s testimony and finding that the plaintiff had not met its burden of establishing the propriety of service of process should not be disturbed (see, Matter of Murdock v Murdock, 183 AD2d 769). Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.