Best v. City of New York

101 A.D.2d 847, 476 N.Y.S.2d 17, 1984 N.Y. App. Div. LEXIS 18521

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiff appeals from an order of the Supreme Court, Kings County (Shaw, J.), entered July 18, 1983, which granted defendant Henry Keller’s motion to dismiss the complaint as against him. 11 Order reversed, with costs, and matter remitted to Special Term for a traverse hearing consistent herewith. 11 Under the circumstances of this case, Special Term erred in dismissing the plaintiff’s complaint as against defendant Keller for failure of proof of service of the summons because the affidavit of service did not substantially comply with CPLR 306 (subd [b]) because it omitted a description of the person to whom the summons was delivered. “The fact that the original affidavit of service was improperly executed is not a jurisdictional defect, if in fact service was properly made” (Mariano v Steinberg, 87 AD2d 606; see, also, LeFevre v Cole, 92 AD2d 720). H Additionally, Special Term improperly treated Keller’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 8) as one for summary judgment without giving notice to the parties of its intention to do so (see Rich v Lefkovits, 56 NY2d 276; Boswell v Jiminy Peak, 94 AD2d 782). In the case at bar the plaintiff should have been given the opportunity to prove that Keller was properly served. Bracken, J. P., Niehoff, Rubin and Eiber, JJ., concur.