Britt v. Klindt

Appellate Division of the Supreme Court of New York

Britt v. Klindt

209 A.D.2d 370, 619 N.Y.S.2d 595, 1994 N.Y. App. Div. LEXIS 11015

Appellate Division of the Supreme Court of the State of New York·Decided November 7, 1994·Published

Opinion

-—In a medical [371]*371malpractice action, the defendant Joyce A. Klindt appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated September 13, 1993, which, after a hearing, granted the plaintiff’s motion to strike the affirmative defense that the court lacked personal jurisdiction over the defendant, and denied the defendant’s cross motion to dismiss the plaintiff’s complaint for lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly found, by a preponderance of the evidence, that service was completed pursuant to CPLR 308 (2), and jurisdiction obtained over the appellant. The fact that the process server’s testimony at the hearing was contradictory to his original affidavit of service with respect to when mailing was performed raised an issue of credibility which was resolved in his favor by the hearing court (cf., Avakian v De Los Santos, 183 AD2d 687). Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.

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-—In a medical [371]*371malpractice action, the defendant Joyce A. Klindt appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), dated September 13, 1993, which, after a hearing, granted the plaintiff’s motion to strike the affirmative defense that the court lacked personal jurisdiction over the defendant, and denied the defendant’s cross motion to dismiss the plaintiff’s complaint for lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

The Supreme Court correctly found, by a preponderance of the evidence, that service was completed pursuant to CPLR 308 (2), and jurisdiction obtained over the appellant. The fact that the process server’s testimony at the hearing was contradictory to his original affidavit of service with respect to when mailing was performed raised an issue of credibility which was resolved in his favor by the hearing court (cf., Avakian v De Los Santos, 183 AD2d 687). Mangano, P. J., Lawrence, Copertino, Krausman and Goldstein, JJ., concur.

Britt v. Klindt, 209 A.D.2d 370, 619 N.Y.S.2d 595, 1994 N.Y. App. Div. LEXIS 11015 (N.Y. Ct. App. 1994).

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Opinion

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