In Barto v. Lugo the Appellate Division, Second Department upheld a finding by the trial court that the defendants had not been properly served with process. The process server submitted affidavits that stated process was left with a female relative of the defendants, who was of suitable age and discretion, and living at the defendants’ residence. The woman was identified as Rene Lugo.

Defendants claimed that the description of the female served did not match the description of the only other female relative living in defendants’ relative. Moreover, the process server testified at the hearing that he had no independent recollection of the alleged service.

The Second Department stated that the trial court was in a more advantageous position to make a determination, having seen and heard the witnesses. It found that there was ample evidence in the record to support the trial court’s determination.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07780.htm