Jessica Jones works as an independent contractor for the fictional law firm Hogarth, Chao & Benowitz LLP. Jeri Hogarth retained Jones to serve a summons on the owner of a gentleman’s club in a negligence case where a dancer suffered a traumatic brain injury falling off a stage.
Jones serves the summons on the Defendant after waiting for him to leave a nightclub. Service was made after picking up the back of the Defendant’s car, serving him the summons, and taking a cell phone photo of the Defendant.
Was this proper service of process?
Every civil lawsuit requires effective service of process for a court to have jurisdiction over someone. Service of process can be made by personal delivery; certified mail; and alternative service of process by court order, such as publication or email. NY CLS SCPA § 308. Proof of service must state the papers served, who served the papers, including the date, time, address, or manner of service, and description of who was served. NY CLS SCPA § 306.
Defendants can challenge service of process in New York in a “Traverse Hearing.” The Plaintiff has the burden to prove by a preponderance of the evidence that the Defendant had proper service of process. LePatner & Assoc., LLP v. Horowitz (Sup.Ct.) 2009 NY Slip Op 29092, ¶ 3. This can be shown with an affidavit by the process server, which is prima facie evidence of proper service. Id. A Defendant cannot issue a conclusory denial of receipt of service to rebut the presumption of proper service created by a properly executed affidavit of service. A Defendant must make a factual showing to controvert the presumption that service of process was proper. Id.
Jessica Jones could prepare an affidavit stating when and where she served the gentlemen’s club owner. Moreover, the smartphone photo with location metadata would verify the time and place of the service of process. This would be a very powerful affidavit demonstrating proper service of process.
The issue is Jessica picking up the Defendant’s car. The Defendant could claim Jessica assault him by picking up his car and then threatening him with her “laser eyes.”
This argument would fail. First, most assault cases would find the person with a car to be more dangerous than a pedestrian. Secondly, Jessica is super strong, but she does not have laser eyes. The Defendant’s claims would look wildly insane, and not factually specific to trigger a Traverse Hearing.
