Concerned Citizens Org. v. Redman

133 A.D.2d 439, 519 N.Y.S.2d 659, 1987 N.Y. App. Div. LEXIS 49912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1987
• Status: Published

Opinion

In an action to recover damages for injury to property, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Hurowitz J.), dated January 27, 1986, which, upon an order dated October 3, 1985, made after a hearing, dismissed the complaint against the defendant Dianne Norris for lack of personal jurisdiction. The plaintiffs’ notice of appeal from the order is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

The court acted properly in dismissing the complaint against the defendant Norris for lack of personal jurisdiction. The affidavit of service adduced by the plaintiffs did not constitute proof of proper service since the affidavit did not state where the service occurred (see, CPLR 306). Moreover, even assuming that the affidavit of service was proper, once the defendant Norris denied receipt of service under oath at the hearing, the affidavit of service was rendered inconclusive on the issue of proper service since the process server was living and available to testify (see, De Zego v Donald F. Bruhn, M.D., P. C., 99 AD2d 823, affd 67 NY2d 875; Anton v Amato, 101 AD2d 819, 820). Given the plaintiffs’ failure to produce any proof to establish proper service upon the defendant Norris, the dismissal of the complaint against that defendant was proper. Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.