Coyne v. Besser

Appellate Division of the Supreme Court of New York

Coyne v. Besser

154 A.D.2d 503, 546 N.Y.S.2d 129, 1989 N.Y. App. Div. LEXIS 12784

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

DecidedOctober 16, 1989

StatusPublished

Cited by4 cases

This text of 154 A.D.2d 503 (Coyne v. Besser) 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

Coyne v. Besser, 154 A.D.2d 503, 546 N.Y.S.2d 129, 1989 N.Y. App. Div. LEXIS 12784 (N.Y. Ct. App. 1989).

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Opinion

— In an action to recover damages for medical malpractice, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Queens County (Santucci, J.), dated March 29, 1988, which granted the defendant Walter A. Besser’s motion to dismiss the complaint as against him on the ground of lack of personal jurisdiction, and (2) as limited by their brief, from so much of an order of the same court, dated June 30, 1988, as, upon reargument, adhered to its original determination.

Ordered that the appeal from the order dated March 29, 1988 is dismissed, as that order was superseded by the order dated June 30, 1988, made upon reargument; and it is further,

Ordered that the order dated June 30, 1988 is affirmed • insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

At a hearing held on December 12, 1986 the credible evidence adduced indicated that the plaintiffs’ process server intended to serve the defendant Dr. Walter A. Besser with process as the latter walked through his waiting room to his inner office. The hearing court found, however, that although the process server called out the doctor’s name, he did not inform the doctor or otherwise put the doctor on notice that he had process to serve, and the doctor’s entering his inner office could not be said to constitute a deliberate course of evasion which would justify leaving the process in the doctor’s general vicinity. It is well settled that a defendant has a duty to accept service of process (see, Bossuk v Steinberg, 58 NY2d 916), and that one who resists such service may be considered validly served pursuant to CPLR 308 (1) if process is subsequently left in his or her general vicinity (see, Haak v Town of Wheatland, 86 AD2d 961, 962). It is imperative, however, that [504]*504the defendant be made aware that he or she is in fact being served with process (see, Haak v Town of Wheatland, supra).

We see no basis to disturb the hearing court’s finding that the doctor was not made aware that he was being served with process. Given that factual predicate, valid service was not effectuated by merely leaving the papers on a chair in the reception area of the doctor’s office.

We have considered the plaintiffs’ remaining contentions and find them to be without merit. Brown, J. P., Eiber, Kooper and Rosenblatt, JJ., concur.

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— In an action to recover damages for medical malpractice, etc., the plaintiffs appeal (1) from an order of the Supreme Court, Queens County (Santucci, J.), dated March 29, 1988, which granted the defendant Walter A. Besser’s motion to dismiss the complaint as against him on the ground of lack of personal jurisdiction, and (2) as limited by their brief, from so much of an order of the same court, dated June 30, 1988, as, upon reargument, adhered to its original determination.

Ordered that the appeal from the order dated March 29, 1988 is dismissed, as that order was superseded by the order dated June 30, 1988, made upon reargument; and it is further,

Ordered that the order dated June 30, 1988 is affirmed • insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

At a hearing held on December 12, 1986 the credible evidence adduced indicated that the plaintiffs’ process server intended to serve the defendant Dr. Walter A. Besser with process as the latter walked through his waiting room to his inner office. The hearing court found, however, that although the process server called out the doctor’s name, he did not inform the doctor or otherwise put the doctor on notice that he had process to serve, and the doctor’s entering his inner office could not be said to constitute a deliberate course of evasion which would justify leaving the process in the doctor’s general vicinity. It is well settled that a defendant has a duty to accept service of process (see, Bossuk v Steinberg, 58 NY2d 916), and that one who resists such service may be considered validly served pursuant to CPLR 308 (1) if process is subsequently left in his or her general vicinity (see, Haak v Town of Wheatland, 86 AD2d 961, 962). It is imperative, however, that [504]*504the defendant be made aware that he or she is in fact being served with process (see, Haak v Town of Wheatland, supra).

We see no basis to disturb the hearing court’s finding that the doctor was not made aware that he was being served with process. Given that factual predicate, valid service was not effectuated by merely leaving the papers on a chair in the reception area of the doctor’s office.

We have considered the plaintiffs’ remaining contentions and find them to be without merit. Brown, J. P., Eiber, Kooper and Rosenblatt, JJ., concur.

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Bluebook (online)

154 A.D.2d 503, 546 N.Y.S.2d 129, 1989 N.Y. App. Div. LEXIS 12784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coyne-v-besser-nyappdiv-1989.

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