By: Mario Serra, Jr., Esq. & Harrison Edwards III, Esq.
A Traverse Hearing is a pre-trial hearing ordered when a defendant has attacked the propriety of the service of process in a civil action. Typically, a defendant will raise the issue of improper service in an omnibus motion to dismiss plaintiff’s action, which will likely include attacks on many other aspects of plaintiff’s claim (ie. Standing, etc.). As the issue of proper service raises the question of whether the court has personal jurisdiction over a defendant, judges will usually address the service issue initially and independently of the other grounds raised for dismissal.
The general practice is that the court will analyze the defendant’s attack, and if the question is unresolved and necessitates a hearing, the court will hold the balance of the motion in abeyance while awaiting the outcome of the Traverse Hearing. As will be discussed further below, this is important because the attorney handling the traverse should be prepared to argue the balance of the motion at the hearing should the court render a decision after the traverse at the conclusion of the hearing.
To warrant a traverse, a defendant must do more than simply claim “I was never served.” The affidavits of service from the process server constitute prima facie evidence of good service that a defendant must rebut to merit a hearing on the issue. In defendant’s moving papers there must be evidence, in admissible form, supporting the claim of improper service. The type of evidence can vary greatly, depending on the manner of the service. Personal service on the defendant, suitable age and discretion at defendant’s dwelling or place of business, nail and mail after unsuccessful attempts at personal service etc.
Affidavits from the defendant himself stating he does not reside at the location where service was alleged may accompany a defendant’s motion. Any affidavits must be sworn to and from individuals with personal knowledge. Attorney affirmations, unless the attorney has independent personal knowledge are not sufficient, although some judges will consider them anyway.
If during argument of the motion, the court takes into consideration an attorney’s affirmation without additional evidence from someone with personal knowledge that should be objected to and noted on the record, if the court conducts oral argument on the record.
Should the court rule that the defendant has rebutted the prima facie evidence of good service established by the process servers’ affidavits, it will order a Traverse Hearing and, and typically hold the balance of the motion in abeyance pending the outcome of the hearing.
In Kings County, how the hearing proceeds varies from judge to judge. Some judges do not conduct the hearing themselves, they refer the case to a judicial hearing officer (“JHO”) to conduct the hearing. In such instances, the parties must decide whether the JHO’s findings will be binding on the parties, or whether they will simply be a recommendation to the presiding judge. Other judges will conduct the hearing themselves.
The conduct of the hearing itself also varies a great deal from judge to judge. Some judges are very formal, conducting the hearing almost as it is a trial. Others are more informal. If an attorney is unfamiliar with the judge or JHO’s practices, it would behoove them to understand that particular judge or JHO.
The most important part of conducting the hearing is preparation. The handling attorney should be fully familiar with the motion work that ultimately gave rise to the hearing. This is especially important when the supporting evidence submitted with defendant’s motion includes affidavits from witnesses that may testify at the hearing. Typically these motions are prepared and affidavits reviewed and signed many months before the hearing, and those affidavits can prove exceedingly valuable when cross examining those witnesses if opposing counsel has failed to properly prepare their witnesses.
In advance, it should be confirmed that the process servers have been ordered and are available on the date of the hearing. In the event an adjournment may be needed, the court must be conferred with prior to the hearing and permission obtained from the court. Showing up the day of the hearing with a stipulation to adjourn is not advisable.
Typically, plaintiff will be called on first to present its’ witnesses. There may only be a single witness, if the service was personal service. In the event that there was a mailing component that was required, the attorney should attempt to have opposing counsel stipulate to the mailing portion, as the issue is very rarely with any defect in the mailing portion.
The process server should appear with his log book, copies of his affidavit(s), copy of the photograph of the premises served and, as is required by the New York City Administrative Code, his process serving license. Direct examination should be relatively quick, absent any special circumstances.
During cross examination, opposing counsel will often attempt to muddy the waters with irrelevant lines of questioning. Close attention should be paid and objections should raised where appropriate.
During defendant’s presentation of witnesses, close attention should be paid to the testimony and if the witness provided an affidavit with the motion, inconsistencies should be identified and exploited on cross examination. Anything that could tend to weigh on the witnesses credibility is fair game. If it is a foreclosure and the property is multi-family and the witness testifying is a non-party tenant one must understand that his/her motivation is to stay in the property. “How long have you lived at the premises?” “Do you like where you live?” Where would you go if you could no longer live there?” are all fair questions.
At the conclusion of the hearing, the judge or JHO may or may not allow for summation or a closing statement. The attorney should be prepared to provide a brief recitation of what transpired at the hearing and why service should be sustained. If the hearing is conducted before the presiding judge, depending on the judge, a decision may be rendered from the bench at the conclusion of the hearing. This is why the handling attorney should be familiar with the balance of the motion that had been held in abeyance. If the court sustains service, it may move right on to the other issues raised in the motion and potentially rule on that as well.
For more information please contact via email Mario A. Serra, Esq. or by phone at 973-538-4700 ext. 196.
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