Cooney v. East Nassau Medical Group

136 A.D.2d 392, 528 N.Y.S.2d 364, 1988 N.Y. App. Div. LEXIS 4548
CourtAppellate Division of the Supreme Court of the State of New York
DecidedApril 28, 1988
StatusPublished
Cited by13 cases

This text of 136 A.D.2d 392 (Cooney v. East Nassau Medical Group) 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
Cooney v. East Nassau Medical Group, 136 A.D.2d 392, 528 N.Y.S.2d 364, 1988 N.Y. App. Div. LEXIS 4548 (N.Y. Ct. App. 1988).

Opinions

OPINION OF THE COURT

Murphy, P. J.

After a traverse hearing, the Special Referee concluded that plaintiffs had succeeded in obtaining personal jurisdiction over defendant partnership East Nassau Medical Group, but had failed to obtain jurisdiction over defendant Dr. Alfred E. Cave. These findings were confirmed by the court which accordingly severed and dismissed the action as against Cave but denied defendant East Nassau Medical Group’s motion to dismiss the action as against it.

We conclude that the Referee’s report was in error both as to its finding that jurisdiction had been obtained over the partnership and as to its finding that it had not been obtained over defendant Cave, and that the court’s order incorporating these erroneous findings should be modified accordingly.

It is undisputed that the process by which plaintiffs would have bound East Nassau Medical Group, in the present action, was left by the process server with Mrs. Hazel Buehlman, the partnership’s executive secretary. It is further undisputed that Mrs. Buehlman, not being an East Nassau partner, was not authorized pursuant to CPLR 310 to receive service for the partnership. Nor is there any question that Mrs. Buehlman was not authorized to receive service for the partnership pursuant to any other statutory provision. As it is well established that ”[s]ervice is only effective * * * when it is made pursuant to the appropriate method authorized by the CPLR” (Markoff v South Nassau Community Hosp., 61 NY2d 283, 288; see also, Feinstein v Bergner, 48 NY2d 234, 241; McDonald v Ames Supply Co., 22 NY2d 111, 115-116), it follows that the service here at issue was invalid and, therefore, ineffective to bring the partnership within the court’s [394]*394jurisdiction. Two theories are, however, offered to save the service intended for the partnership.

The first of these relies heavily upon Fashion Page v Zurich Ins. Co. (50 NY2d 265). There, the Court of Appeals sustained service on a corporation upon the ground that the process server had permissibly relied on corporate employees to identify the proper person to accept process on the corporation’s behalf and had served that person "in a manner which, objectively viewed, [was] calculated to give the corporation fair notice” (supra, at 272). Plaintiffs would extend the reasoning of Fashion Page to embrace partnerships. Thus, it is urged that a process server may rely on partnership employees to identify the proper person to be served.

A close reading of Fashion Page (supra), however, discloses that the approach taken there was meant to address a special problem confronting process servers attempting to serve corporations. A corporation must, of course, be served through an agent. And, although the statute identifies specifically certain corporate personnel who may act as agents for the receipt of corporate process, it also provides generally that process may be served on "any * * * agent authorized by appointment or by law to receive service”. (CPLR 311 [1].) As the Court of Appeals has noted, appointment of an agent pursuant to CPLR 311 (1) need not be attended by formalities such as those set forth in CPLR 318. (Fashion Page v Zurich Ins. Co., supra, at 272.) The statute then expressly recognizes that a corporation may informally designate virtually anyone to receive process in its behalf. Thus drawn, the statute does not inform the process server of precisely who, and, more importantly who may not, accept service. The process server on entering corporate offices may, therefore, find it necessary to inquire as to the identity of the proper recipient of corporate process and will generally have little reason to discount representations of authority made to him by corporate employees (supra, at 273). It was then in recognition of the circumstance that "the process server cannot be expected to know the corporation’s internal practices” (supra, at 272) pursuant to which an agent for the receipt of process may be appointed that the Fashion Page court went on to hold that "[r]eliance may be based on the corporate employees to identify the proper person to accept service” (supra, at 272).

Key to a proper understanding of Fashion Page (supra) is the fact that the statute expressly renders internal corporate practices respecting the receipt of service, which practices [395]*395may be initially unknown to the process server, relevant to the process server’s discharge of his or her duties. The same is not true of CPLR 310 governing service upon partnerships. Unlike corporations, partnerships need not be served through agents, and, leaving aside CPLR 318 which is not here relevant, the applicable statute makes no allowance for any but personal service: CPLR 310 provides in its entirety, "Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them.” Thus, as the process server sets about serving a partnership he knows exactly who may be served, i.e., a partner, and has no need to rely on partnership personnel to identify others authorized to act in the partners’ stead. Indeed, there is ordinarily no reason for a process server to suppose that anyone but a partner will be so authorized. As noted, the statute provides no basis for such a supposition. Nor does it seem likely that partners would generally wish to waive personal service and so facilitate the commencement of proceedings against themselves. The factors justifying a process server’s reliance upon representations of authority made to him in the course of serving a corporation simply do not obtain where the object of service is a partnership and for this reason the essential holding of Fashion Page (supra, at 272), namely, that "[r]eliance may be based on the corporate employees to identify the proper person to accept service” may not be transposed so as to apply where service upon a partnership is at issue.

There is, in any case, no indication that the plaintiffs’ process server was in any way misled. Although he was directed by a receptionist to Mrs. Buehlman, the record gives no evidence of any inquiry by him respecting Mrs. Buehlman’s authority. Nor is there any indication that Mrs. Buehlman made any representation of authority to him. Indeed, the record before the court does not disclose that East Nassau attempted in any way to interfere with the proper delivery of process. To the contrary, the undisputed testimony of Mrs. Buehlman, which was the sole testimony offered respecting the service directed at the partnership, established that when, in the normal course of business, a process server requested that a partner be made available to accept service, Mrs. Buehlman would, "see what partner was available and call him to come to the administration office.” It would have been an easy matter for the process server to serve a partner in accordance with CPLR 310. That he did not do so is appar[396]*396ently due to his failure to ask that one be made available rather than to any affirmative attempt by the partnership to evade service.

Although conceding that the rationale of Fashion Page (50 NY2d 265) is not here applicable, the dissent would uphold the service intended for East Nassau upon the singular ground that Mrs. Buehlman was in fact authorized by the partnership to accept service in its behalf. It is, at best, questionable whether Mrs. Buehlman was so authorized.

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Bluebook (online)
136 A.D.2d 392, 528 N.Y.S.2d 364, 1988 N.Y. App. Div. LEXIS 4548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooney-v-east-nassau-medical-group-nyappdiv-1988.