Matter of Zhang v. Feiner

Matter of Zhang v Feiner 2026 NY Slip Op 05546 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Fan Zhang, et al., respondents, v Paul Feiner, in his official capacity as Supervisor of the Town of Greenburgh, et al., appellants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2026-03201, (Index No. 74054/24) Mark C. Dillon, J.P. Linda Christopher Barry E. Warhit Elena Goldberg Velazquez, JJ. Cozen O'Connor, New York, NY (Jerry H. Goldfeder and Kerry T. Cooperman of counsel), for appellants. Bernstein & Associates, PLLC, Scarsdale, NY (Robert B. Bernstein of counsel), for respondents. [*1] DECISION & ORDER In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent/defendant Paul Feiner, in his official capacity as Supervisor of the Town of Greenburgh, dated September 27, 2024, which, after a hearing, determined that a petition for the incorporation of the proposed Village of Edgemont did not comply with the requirements of Village Law article 2, and action for a judgment declaring that the petition for the incorporation of the proposed Village of Edgemont complies with the requirements of Village Law article 2, the appeal is from an order and judgment (one paper) of the Supreme Court, Westchester County (Melissa A. Loehr, J.), dated March 6, 2026. The order and judgment, insofar as appealed from, upon an order of the same court dated March 12, 2025, among other things, denying that branch of the respondents/defendants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against the respondent/defendant Paul Feiner, in his official capacity as Supervisor of the Town of Greenburgh, and upon an order of the same court dated September 24, 2025, inter alia, granting the petitioners/plaintiffs' cross-motion pursuant to CPLR 408 and 3042(e) to vacate demands for bills of particulars, and denying the respondents/defendants' motion pursuant to CPLR 3042 and 3126 to strike the petition/complaint, granted the petition, annulled the determination, declared that the petition for the incorporation of the proposed Village of Edgemont complies with the requirements of Village Law article 2, and directed the respondents/defendants to take all necessary steps to hold an election to determine the matter of incorporation of the proposed Village of Edgemont. ORDERED that the order and judgment is reversed insofar as appealed from, on the law, with costs, so much of the order dated March 12, 2025, as denied that branch of the respondents/defendants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against the respondent/defendant Paul Feiner, in his official capacity as Supervisor of the Town of Greenburgh, is vacated, and the matter is remitted to the Supreme Court, Westchester County, for a hearing to determine whether that respondent/defendant was properly served with process and a new determination thereafter of that branch of the respondents/defendants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against the respondent/defendant Paul Feiner, in his official [*2]capacity as Supervisor of the Town of Greenburgh. In September 2024, after a hearing, Paul Feiner, in his official capacity as Supervisor of the Town of Greenburgh, determined that a petition for the incorporation of the proposed Village of Edgemont did not comply with the requirements of Village Law article 2. The petitioners/plaintiffs (hereinafter the petitioners) thereafter commenced this hybrid proceeding pursuant to CPLR article 78, inter alia, to review Feiner's determination and action for declaratory relief. According to an affirmation of service of the petitioners' process server, Feiner was personally served on November 20, 2024, by delivery of copies of the "notice of electronic filing; notice of petition; exhibit 5; exhibit 9; [and] exhibit 11" (hereinafter the November 2024 affirmation of service). In December 2024, the respondents/defendants (hereinafter the appellants) moved, among other things, pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against Feiner. The petitioners again attempted to serve Feiner. According to an affirmation of service of the petitioners' process server, Feiner was served on January 14, 2025, at his actual place of business by delivery to "Krista Madsen [Co-Worker], a person of suitable age and discretion," and the papers were thereafter mailed to Feiner "by first class postpaid envelope properly addressed to respondent at respondent's actual place of business" (hereinafter the January 2025 affirmation of service). The petitioners thereafter cross-moved pursuant to CPLR 306-b to extend the time to serve. In an order dated March 12, 2025, the Supreme Court, inter alia, denied that branch of the appellants' motion and granted the petitioners' cross-motion. The appellants subsequently served demands for bills of particulars on the petitioners. The petitioners cross-moved pursuant to CPLR 408 and 3042(e) to vacate the demands for bills of particulars. The appellants thereafter moved pursuant to CPLR 3042 and 3126 to strike the petition/complaint. In an order dated September 24, 2025, the Supreme Court, among other things, granted the petitioners' cross-motion and denied the appellants' motion. Thereafter, in an order and judgment dated March 6, 2026, the Supreme Court, inter alia, granted the petition, annulled the determination, declared that the petition for the incorporation of the proposed Village of Edgemont complies with the requirements of Village Law article 2, and directed the appellants to take all necessary steps to hold an election to determine the matter of incorporation of the proposed Village of Edgemont. This appeal ensued. Bills of particulars are not disclosure devices (see Northway Eng'g v Felix Indus., 77 NY2d 332, 336). The purpose of a bill of particulars is to amplify pleadings, limit proof, and prevent surprise at trial, not to provide evidentiary material (see Fremont Inv. & Loan v Gentile, 94 AD3d 1046, 1046). Here, the demands for bills of particulars improperly sought irrelevant and evidentiary material. Accordingly, the Supreme Court properly granted the petitioners' cross-motion pursuant to CPLR 408 and 3042(e) to vacate the demands for bills of particulars, and denied the appellants' motion pursuant to CPLR 3042 and 3126 to strike the petition/complaint. A court lacks personal jurisdiction over a respondent who is not properly served with process (see Harvey v Usukumah, 238 AD3d 1007, 1008; Nationstar Mtge., LLC v Esdelle, 186 AD3d 1384, 1386). Service of process upon a natural person must be made in strict compliance with the methods of service set forth in CPLR 308 (see Accesslex Inst. v O-Sun Lee, 251 AD3d 487, 488; Matter of Lester Korinman Kamran & Masini, P.C. v Davis, 227 AD3d 906, 907). A process server's affidavit of service constitutes prima facie evidence of proper service (see Harvey v Usukumah, 238 AD3d at 1008; US Bank N.A. v Meyer, 229 AD3d 836, 837). A mere conclusory denial of service is insufficient to rebut the presumption of proper service arising from the process server's affidavit (see Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d 758, 759; U.S. Bank Trust, N.A. v Catalano, 215 AD3d 992, 993-994). To warrant a hearing to determine the validity of service of process, the denial of service must be substantiated by specific, detailed facts that contradict the affidavit of service (see Accesslex Inst. v O-Sun Lee, 251 AD3d at 488; Matter of Rockman v Nassau County Sheriff's Dept., 224 AD3d at 760). Further, in a CPLR article 78 proceeding, the petitioner must serve the respondent with the notice of petition, petition, and any [*3]affidavits specified in the notice (see id. § 7804[c]). Here, in the November 2024 affirmation of service, the process server failed to indicate that personal service upon Feiner included the petition/complaint, as required by CPLR 7804(c). In opposition to the appellants' motion, among other things, pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against Feiner, the petitioners offered no further evidence of compliance with the service requirement of CPLR 7804(c). Accordingly, the service in November 2024 was insufficient to confer personal jurisdiction over Feiner. By contrast, the January 2025 affirmation of service constituted prima facie evidence of proper service. However, in moving pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against Feiner, the appellants did not merely make a conclusory denial of service, but rather provided specific, detailed facts that contradicted the January 2025 affirmation of service. Feiner averred that he was served with process at his actual place of business via ground advantage mail rather than first-class mail as required by CPLR 308(2), and submitted a photograph of the mailing label. Feiner's sworn, nonconclusory denial of service was sufficient to dispute the veracity or contents of the January 2025 affirmation of service, requiring a hearing (see Harrison v Schottenstein, 228 AD3d 848, 850-851; Bank of N.Y. v Dutan, 200 AD3d 636, 638). Accordingly, we remit the matter to the Supreme Court, Westchester County, for a hearing to determine the validity of the service of process upon Feiner and a new determination thereafter of that branch of the appellants' motion which was pursuant to CPLR 3211(a) to dismiss the petition/complaint insofar as asserted against Feiner. The parties' remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination. DILLON, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court