Conforti v. Beekman Downtown Hospital

79 A.D.2d 968, 435 N.Y.S.2d 284, 1981 N.Y. App. Div. LEXIS 9840

Opinion

Order, Supreme Court, New York County, entered June 24, 1980, which order denied plaintiff’s motion to renew a prior March 27 order, which granted defendant Porter’s motion pursuant to CPLR 3211 (subd [a], par 8) to dismiss the action for lack of personal jurisdiction, and which denied the plaintiffs’ cross motion to strike the said jurisdictional affirmative defense, unanimously reversed, on the law and the facts, and the plaintiffs’ motion to renew granted, and on renewal the defendants’ motion denied and the plaintiffs’ cross motion granted, with costs. The appeal from the order of March 27, 1980 is dismissed as academic, without costs. This action was brought by the plaintiff to recover damages for personal injuries and by the coplaintiff for loss of consortium. The defendant Porter is a physician. The process server arrived at the defendant’s office but was not permitted by the secretary to see the defendant as he was busy with patients. The secretary then stated that she was authorized to accept service of the summons. The defendant served a notice of appearance and demand for a complaint, and when issue was joined, there was included in the answer an affirmative defense of lack of personal jurisdiction, and the motion to dismiss was made by the defendant on that ground. The court at Special Term granted the motion on the ground that effective substituted service had not been made. However, there was no contention that there had been substituted service. The plaintiff contends that there had been personal service in accordance with CPLR 308 (subd 1), and we so find. (See Slagen v Marwill, 78 Misc 2d 275.) Concur — Kupferman, J.P., Sullivan, Carro, Markewich and Lupiano, JJ.