Best v. City of New York

Appellate Division of the Supreme Court of New York

Best v. City of New York

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 21, 1984

StatusPublished

Cited by6 cases

This text of 101 A.D.2d 847 (Best v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Best v. City of New York, 101 A.D.2d 847, 476 N.Y.S.2d 17, 1984 N.Y. App. Div. LEXIS 18521 (N.Y. Ct. App. 1984).

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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.

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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.

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Bluebook (online)

101 A.D.2d 847, 476 N.Y.S.2d 17, 1984 N.Y. App. Div. LEXIS 18521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/best-v-city-of-new-york-nyappdiv-1984.

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