Alexander Hamilton Sales Corp. v. Anes

167 A.D.2d 493, 562 N.Y.S.2d 944, 1990 N.Y. App. Div. LEXIS 14268

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1990
• Status: Published

Opinion

Appeal by the defendant Anes, Friedman, Leventhal & Rubin, a law partnership, from an order of the Supreme Court, Kings County (Hurowitz, J.), dated December 6, 1988, which denied its motion to dismiss the complaint insofar as it is asserted against it for lack of personal jurisdiction. The appeal brings up for review so much of an order of the same court, dated February 6, 1989, as, upon renewal, adhered to the original determination (see, CPLR 5517 [b]).

Ordered that the appeal from the order dated December 6, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated February 6, 1989, made upon renewal; and it is further,

Ordered that the order dated February 6, 1989, is reversed insofar as reviewed, without costs or disbursements, the order dated December 6,1988, is vacated, and the matter is remitted to the Supreme Court, Kings County, for a hearing and new determination in accordance herewith.

CPLR 310 provides that "Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them”. Because questions of fact have been raised as to whether or not a specific partner was served in the instant action, the matter is remitted to the Supreme Court, Kings County, for a hearing on this issue (see, Hickey v Naruth Realty Corp., 71 AD2d 668; see also, Siegel, NY Prac § 251). Bracken, J. P., Lawrence, Harwood and Rosenblatt, JJ., concur.