July 17, 2020

What Is A Traverse Hearing?

Your bank account was frozen. You find out you got sued but you never even received any kind of notice. You now have to file a motion in court explaining that you were never served with papers. The judge says, "maybe," and schedules the case for a TRAVERSE HEARING. Now what?

What Is A Traverse Hearing?

A Traverse Hearing is held to determine if the respondent or defendant was served personally or otherwise in accordance with the law. Such a hearing is necessary when the respondent/defendant claims that they were not served. The judge then sets the matter down for a hearing to decide whether or not he/she believes the respondent/defendant. 

The word "traverse," as used by the common law, pre-code systems of pleading, belongs to that rich, historical tradition that has included other legal terms, such as assumpsit, trover, and demurrer.

A computerized legal search will reveal that those terms are still used occasionally, although their use is fading as a result of modern codes of pleading. To traverse, in legal parlance means either to deny or to contradict.

  1. Chattanooga Pharm. Assn. v. U.S. Dept. of Justice, 358 F2d 864 [6th Cir. 1966] [per curiam]: "which in no way denied or traversed the quoted allegations"
  2. Andrus v. Waring, 20 Johns. 153 [N.Y. Sup. Ct. 1822])
  3. United States ex rel. Catalano v. Shaughnessy, 197 F2d 65 [2nd Cir. 1952] [per curiam]: "no traverse was filed and no evidence offered to contradict the allegations."
  4. Dalton on Sheriffs, ch. 42, pp. 189-190, quoted with approval in Ansonia Brass Co. v. Conner, 62 How. Pr. 272 [N.Y. Ct. Common Pleas 1881] [Dalton, C.J., dissenting opinion]: "As the sheriff is an officer deputed by the law and by the king for his courts, no one will be allowed to contradict or traverse . . . his return, except in some special cases."

In New York and in some other American jurisdictions, the term "traverse," in civil litigation, means a pre-trial hearing used to determine whether the defendants in that action were properly served with process so as to invoke a court's jurisdiction.

  1. Woodley v. Jordan, 112 Ga. 151, 37 SE 178 [1900]: "on the trial of a traverse to a constable's return of personal service"
  2. Rey v. TVS Automotive, Inc., 128 Misc. 2d 1015, 1016-1017 [NYC Civ. Ct. New York County 1985].
  3. Nottonson v. Schierenbeck, 156 NYS 661 [App. T. 1st Dept. 1915]: "I appear for the defendant for the purpose of objecting to the jurisdiction of the court, on the ground that no service of the summons or process of any kind has been made, and traverse the return herein." 

The purpose of the traverse hearing is to assess the witness's credibility and the court's determination will not be disturbed on appeal "unless it is against the weight of the credible evidence."

The hearing court's assessment of a witness's credibility is entitled to substantial deference."

Freud v. St. Agnes Cathedral School, 64 AD3d 678 [2nd Dept. 2009]

The Traverse In Landlord/Tenant Court

Under RPAPL 733, the process server should serve the petition and notice of petition on each respondent "at least five and not more than twelve days before the time at which the petition is noticed to be heard."

At a traverse hearing, the petitioner or plaintiff bears the burden of proving the propriety of service of process. That burden is usually met by introducing the process server's testimony and records. If the landlord is successful, the traverse is overruled and the case may proceed to trial. Otherwise, the tenant's challenge is sustained and the proceeding is dismissed.

The court will determine whether service was properly effected based on the prima facie evidence and the witnesses' credibility. Although some courts excuse the process server's failure to present a license during traverse hearings, the absence of other relevant records might result in dismissal.

  1. Inter-Ocean Realty Assocs. v. JSA Realty Corp., 152 Misc. 2d 901, 902, 587 N.Y.S.2d 837, 838 (Civ. Ct., N.Y. Co. 1991) dismissed proceeding because process server failed to produce police report or other probative evidence about whereabouts of logbook: "Courts must strictly uphold compliance by process servers with the regulations to soundly effectuate a public policy that prevents questionable service practices."
  2. 26th W. Assocs. v. Slattery, 13 H.C.R. 373A, N.Y.L.J., Nov. 13, 1985, p. 13, col. 6 (Civ. Ct., N.Y. Co.) holding that process server's log held minimal weight in traverse hearing.
  3. Griffith v. Bessent, 21 HCR 434A (Civ. Ct., Kings Co. 1993) holding that failure to maintain bound log of service of process together with lack of independent memory of how many copies of process were served mandates dismissing petition. This combats the persisting problem of process servers who fail to use appropriate efforts to effectuate service ("sewer service").

The Traverse

CPLR 4531 permits an affidavit of service to be admitted as prima facie evidence of the delivery, posting, or affixing of a document when the process server is dead, mentally ill, or cannot be compelled with due diligence to attend the hearing.

An affidavit of service that omits a process server's license number is "unlawful" (N.Y.C. Admin. Code secs. 89, 20-405).

Once a case is referred to a hearing judge for the traverse, the judge is advised to wait a reasonable time for the process server to appear, and to appear with the necessary license and records. Several impatient judges who have dismissed cases have been reversed.

"The court's refusal to grant landlord an adjournment of the traverse so that it could produce proof of the certified mailings of the demand for rent and nonpayment petition was an improvident exercise of discretion."). 

Ezragim Assocs., LLC v. J.H. Design, Inc.

The respondent/defendant will have to establish that they were not served by introducing evidence: (ie. testimony of witnesses who could support an alibi, documentary evidence that would show that you were in another place at the time --passport records, travel records, etc.)

Checklist for Establishing Good Service

The Process Server Testimony 

  1. Name/Address 
  2. Employment
  3. License
  4. Log- Kept in the ordinary course of business
  5. Ordinary course of business to keep records 
  6. Records made at or about the time transactions took place 
  7. Records made by you
  8. You had duty to keep accurate records 
  9. Retained by counsel 
  10. How much
  11. Purpose/Location
  12. Copy of Petition 
  13. Attempts
  14. Results 
  15. Mailing - procedure/made sure address accurate/how dropped in mail/returned? 

Defendant then moves for dismissal. 

New York City:

New York requires all process servers within each of the 5 boroughs to be licensed through the NYC Department of Consumer Affairs. Individual process servers must pay a surety bond of $10,000, and agencies must pay a bond of $100,000 to be effective for their entire license term. Process servers must also pass a test on relevant rules and laws before being issued a license or renewal. (Rules of the City of New York, subchapter W, sec. 2.231, et seq and sec. 20-403, et seq.)

Keep In Mind:

New York City process servers must keep electronic records of their serves, and track serves with global positioning systems (GPS) in accordance with the Commissioner's rules.

Papers cannot be served on Sunday. On Saturday, papers cannot be served upon anyone who keeps Saturday as a holy time. 

Under New York City law, licensed process servers and process serving agencies must report a scheduled traverse hearing (hearing contesting service) to DCA within 10 days of receiving oral or written notice. (Title 6, Rules of the City of New York sec. 2-236(c))

Joseph D. Nohavicka

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