What did the appellate court decide?

The appellate court decided the trial court must first hold a hearing to determine whether the City was properly served before ruling on other parts of the City's motion to dismiss, and sent the case back for that hearing.

Who is affected by this decision?

Both the plaintiff (Villalba) and the City of Auburn are affected because the outcome of the service issue will determine whether the court has jurisdiction to proceed against the City and may affect the pending motion to dismiss.

What happens next in the trial court?

The trial court must conduct a traverse hearing to resolve how and whether the City was served; after that hearing it must rule again on the City's motion to dismiss.

Does this resolve the merits of the negligence and excessive force claims?

No. The appellate court did not decide the merits; it only required the trial court to resolve the service/jurisdiction question first, and then reconsider the other grounds of the motion.

Can the City appeal again?

If the trial court issues a new ruling adverse to the City after the traverse hearing, the City may have the opportunity to appeal that order consistent with appellate rules and timing.

Villalba v. City of Auburn

Docket 168 CA 24-01818

Court of record · Indexed in NoticeRegistry archive · AI-enriched for research

CivilRemanded

Filed: May 1, 2026 · 5 days ago
Jurisdiction: New York
Court: Appellate Division of the Supreme Court of the State of New York
Type: Opinion
Case type: Civil
Disposition: Remanded
Citation: 2026 NY Slip Op 02747
Docket: 168 CA 24-01818

Appeal from an order and judgment denying parts of a motion to dismiss and reserving decision on service of process as to defendant City of Auburn

Summary

The Appellate Division held that the trial court should have first held a traverse hearing to resolve whether the City of Auburn was properly served before deciding the City's motion to dismiss on other grounds. Plaintiff sued the City and officers for negligence and excessive force after an alleged assault during a traffic stop. Supreme Court reserved the service issue but denied other aspects of the motion; the appellate court stayed further decision, remanded the case for a traverse hearing, and directed the trial court to decide the jurisdictional question first and then rule on the remaining motion grounds.

Issues Decided

Whether the trial court erred by deciding non-jurisdictional grounds on a motion to dismiss before resolving whether the City was properly served
Whether a traverse hearing is required to determine the adequacy of service of process on a municipal defendant

Court's Reasoning

The appellate court explained that jurisdictional questions about service must be resolved before addressing other merits or procedural defenses. Precedent requires the court to hold a traverse hearing to determine the facts surrounding service, and only after that determination may the court decide the remainder of the motion. Because the trial court ruled on other issues without first resolving service, the matter must be remanded for the required hearing and then reconsideration of the motion.

Authorities Cited

Elm Management Corp. v Sprung33 AD3d 753, 755 (2d Dept 2006)
77 Commercial Holding, LLC v Central Plastic, Inc.46 Misc 3d 80, 83 (App Term, 2d Dept, 11th & 13th Jud Dists 2014)

Parties

Plaintiff: Lessie Villalba
Defendant: City of Auburn
Defendant: City police officers (unnamed)
Attorney: D. Charles Roberts (Gross Shuman P.C.)
Attorney: Justin T. Huffman (Huffman Law Firm, P.C.)
Judge: Thomas G. Leone, A.J.
Judge: Ann Dillon Flynn

Key Dates

Decision date (Appellate Division): 2026-05-01
Trial court order and judgment entered: 2024-10-04

What You Should Do Next

1
For the trial court
Schedule and conduct a traverse hearing to determine whether the City of Auburn was properly served, then issue findings and proceed to decide the remaining motion grounds.
2
For the City of Auburn
Prepare evidence and witnesses for the traverse hearing concerning service of process (e.g., service records, affidavits) and be ready to supplement the motion after the court's service determination.
3
For the plaintiff (Villalba)
Gather and present proof of proper service (process server affidavits, delivery records) at the traverse hearing and be prepared to address the merits of the pending motion if the court finds service was adequate.

Frequently Asked Questions

What did the appellate court decide?: The appellate court decided the trial court must first hold a hearing to determine whether the City was properly served before ruling on other parts of the City's motion to dismiss, and sent the case back for that hearing.
Who is affected by this decision?: Both the plaintiff (Villalba) and the City of Auburn are affected because the outcome of the service issue will determine whether the court has jurisdiction to proceed against the City and may affect the pending motion to dismiss.
What happens next in the trial court?: The trial court must conduct a traverse hearing to resolve how and whether the City was served; after that hearing it must rule again on the City's motion to dismiss.
Does this resolve the merits of the negligence and excessive force claims?: No. The appellate court did not decide the merits; it only required the trial court to resolve the service/jurisdiction question first, and then reconsider the other grounds of the motion.
Can the City appeal again?: If the trial court issues a new ruling adverse to the City after the traverse hearing, the City may have the opportunity to appeal that order consistent with appellate rules and timing.

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Full Filing Text

Villalba v City of Auburn - 2026 NY Slip Op 02747

Villalba v City of Auburn

2026 NY Slip Op 02747

May 1, 2026

Appellate Division, Fourth Department

LESSIE VILLALBA, PLAINTIFF-RESPONDENT,

CITY OF AUBURN, DEFENDANT-APPELLANT, ET AL., DEFENDANT.

Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

Decided on May 1, 2026

168 CA 24-01818

Present: Bannister, J.P., Montour, Greenwood, Nowak, And Hannah, JJ.

GROSS SHUMAN P.C., BUFFALO (D. CHARLES ROBERTS OF COUNSEL), FOR DEFENDANT-APPELLANT.

HUFFMAN LAW FIRM, P.C., AUBURN (JUSTIN T. HUFFMAN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered October 4, 2024. The order and judgment, inter alia, reserved decision on that part of defendants' motion seeking to dismiss the complaint against defendant City of Auburn on the ground that plaintiff failed to properly serve that defendant.

It is hereby ORDERED that the case is held, the decision is reserved, and the matter is remitted to Supreme Court, Cayuga County, for further proceedings in accordance with the following memorandum: Plaintiff commenced this action sounding in negligence, negligent training, and excessive force against, among others, defendant City of Auburn (City). According to plaintiff, during a traffic stop, City police officers dragged plaintiff to the hood of her vehicle and slammed her head into the hood. Plaintiff alleges that she was denied medical treatment at the police station. In lieu of answering, defendants moved to dismiss the complaint. Supreme Court, inter alia, reserved decision on the motion insofar as it was based on the ground that plaintiff failed to properly serve the City and held that a traverse hearing was required, but otherwise denied the motion on the other grounds raised. The City appeals from the order and judgment to the extent that it denied the motion on those other grounds.

The court should have first conducted the traverse hearing and determined the jurisdictional issue before making a determination on the other grounds raised on the motion (
see Elm Mgt. Corp. v Sprung
, 33 AD3d 753, 755 [2d Dept 2006];
77 Commercial Holding
,
LLC v Central Plastic
,
Inc.
, 46 Misc 3d 80, 83 [App Term, 2d Dept, 11th & 13th Jud Dists 2014]). We therefore hold the case, reserve decision, and remit

the matter to Supreme Court to conduct a traverse hearing and thereafter make a determination on the motion.

Entered: May 1, 2026

Ann Dillon Flynn