Broomes-Simon v. Klebanow

Appellate Division of the Supreme Court of New York

Broomes-Simon v. Klebanow

160 A.D.2d 973, 554 N.Y.S.2d 695, 1990 N.Y. App. Div. LEXIS 5018

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

DecidedApril 30, 1990

StatusPublished

Cited by8 cases

This text of 160 A.D.2d 973 (Broomes-Simon v. Klebanow) 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

Broomes-Simon v. Klebanow, 160 A.D.2d 973, 554 N.Y.S.2d 695, 1990 N.Y. App. Div. LEXIS 5018 (N.Y. Ct. App. 1990).

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Opinion

In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated March 2, 1989, which granted the respondents’ motion for summary judgment dismissing the complaint insofar as it is asserted against them, on the ground of lack of jurisdiction.

Ordered that the order is affirmed, with costs.

The plaintiffs’ process server attempted to avail himself of the amendment to CPLR 308 (2), which governs substituted service, authorizing that the requisite mailing be made to the actual place of business of the person to be served (see, L 1987, ch 115, § 1). At bar, not only did the envelopes in which the summonses were mailed bear endorsements which arguably violate the statutory prohibition against indications that the sender is an attorney or that the communication "concerns an action” against the addressee, they failed to bear the legend "personal and confidential” as required by statute (CPLR 308 [2]). Since the plaintiffs’ process server failed to comply with the conditions prescribed for the mode of substituted service utilized, jurisdiction over the respondents was not acquired (see, Macchia v Russo, 67 NY2d 592; Feinstein v Bergner, 48 NY2d 234; Schurr v Fillebrown, 146 AD2d 623). Thompson, J. P., Brown, Kunzeman and Harwood, JJ., concur.

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In an action to recover damages for medical malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Pizzuto, J.), dated March 2, 1989, which granted the respondents’ motion for summary judgment dismissing the complaint insofar as it is asserted against them, on the ground of lack of jurisdiction.

Ordered that the order is affirmed, with costs.

The plaintiffs’ process server attempted to avail himself of the amendment to CPLR 308 (2), which governs substituted service, authorizing that the requisite mailing be made to the actual place of business of the person to be served (see, L 1987, ch 115, § 1). At bar, not only did the envelopes in which the summonses were mailed bear endorsements which arguably violate the statutory prohibition against indications that the sender is an attorney or that the communication "concerns an action” against the addressee, they failed to bear the legend "personal and confidential” as required by statute (CPLR 308 [2]). Since the plaintiffs’ process server failed to comply with the conditions prescribed for the mode of substituted service utilized, jurisdiction over the respondents was not acquired (see, Macchia v Russo, 67 NY2d 592; Feinstein v Bergner, 48 NY2d 234; Schurr v Fillebrown, 146 AD2d 623). Thompson, J. P., Brown, Kunzeman and Harwood, JJ., concur.

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Bluebook (online)

160 A.D.2d 973, 554 N.Y.S.2d 695, 1990 N.Y. App. Div. LEXIS 5018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broomes-simon-v-klebanow-nyappdiv-1990.

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