## Facts

- Husband and wife married in 1973, lived primarily in Philadelphia, and maintained an apartment in New York City used by both during the marriage.
- After separation, the wife moved into the New York apartment while the husband remained in Philadelphia but continued to use the New York apartment periodically, including approximately one weekend per month, and kept clothing there.
- On May 11, 1979, the parties spoke by telephone; the wife stated in a sworn affidavit that she did not ask the husband to come to New York and that he said he was coming that weekend.
- On May 12, 1979, the husband came to the New York apartment, at least partly to remove clothing he kept there.
- While the husband was in the apartment, the wife caused him to be personally served with a Family Court summons and petition seeking spousal support.
- The husband moved in Family Court to vacate service, claiming the wife fraudulently induced him to enter New York solely to permit service, and requested an evidentiary hearing.
- Family Court denied the motion and denied a hearing; the husband appealed.

## Issues

1. Whether personal service on the husband in New York should be vacated because the wife allegedly induced his entry into the jurisdiction by fraud or deceit for the purpose of service.
2. Whether the husband was entitled to an evidentiary hearing on the service challenge based on his allegations of fraudulent inducement.

## Decision

- The Appellate Division affirmed the order denying the motion to vacate service.
- The court held service was not invalidated because the wife’s sworn statement that she did not request the husband come to New York was uncontroverted.
- The court held no hearing was required because the husband’s submissions did not raise a triable issue of fact on fraudulent inducement.

## Legal Principles

- Service of process may be set aside if a defendant is induced to enter the jurisdiction solely by fraud or deceit for the purpose of effecting service.
- The party challenging service bears the burden to allege and support facts showing actual fraudulent inducement.
- A hearing on a service challenge is required only when the motion papers present a genuine factual dispute; conclusory allegations do not compel a hearing.
- Where a critical sworn factual assertion is not controverted, the court may decide the motion on affidavits and uphold service.

## Conclusion

The court upheld personal service in New York and affirmed denial of a hearing because the husband did not rebut the wife’s sworn statement that she never requested his presence in New York, leaving no factual basis to find he was fraudulently lured into the jurisdiction solely to be served.


Hammett v. Hammett, 74 A.D.2d 540, 424 N.Y.S.2d 913 (N.Y. App. Div. 1st Dep’t 1980)