Davis v. City of New York

Appellate Division of the Supreme Court of New York

Davis v. City of New York

248 A.D.2d 427, 668 N.Y.S.2d 947, 1998 N.Y. App. Div. LEXIS 2320

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

DecidedMarch 9, 1998

StatusPublished

This text of 248 A.D.2d 427 (Davis v. City of New York) 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

Davis v. City of New York, 248 A.D.2d 427, 668 N.Y.S.2d 947, 1998 N.Y. App. Div. LEXIS 2320 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, the defendants Rothschild Associates and Alan Rothschild appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated April 1, 1997, as granted the plaintiffs motion to dismiss the third affirmative defense asserted in their joint answer alleging lack of jurisdiction over the defendant Alan Rothschild.

Ordered that the appeal by the defendant Rothschild Associates is dismissed, as it is not aggrieved by the portion of the order dated April 1, 1997, from which the appeal is taken; and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Alan Rothschild; and it is further,

Ordered that the respondent is awarded one bill of costs payable by the appellants.

The Supreme Court properly granted the plaintiffs motion to dismiss the affirmative defense of lack of jurisdiction over the defendant Alan Rothschild, as he failed to “swear to specific facts in support of any denial of proper service” (European Am. Bank v Abramoff, 201 AD2d 611, 612), and the affidavit by Rothschild’s father “was insufficient to establish prima facie plaintiffs failure to obtain personal jurisdiction over [him]” (New York State Higher Educ. Servs. Corp. v De John, 224 AD2d 904).

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.

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—In an action to recover damages for personal injuries, the defendants Rothschild Associates and Alan Rothschild appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated April 1, 1997, as granted the plaintiffs motion to dismiss the third affirmative defense asserted in their joint answer alleging lack of jurisdiction over the defendant Alan Rothschild.

Ordered that the appeal by the defendant Rothschild Associates is dismissed, as it is not aggrieved by the portion of the order dated April 1, 1997, from which the appeal is taken; and it is further,

Ordered that the order is affirmed insofar as appealed from by the defendant Alan Rothschild; and it is further,

Ordered that the respondent is awarded one bill of costs payable by the appellants.

The Supreme Court properly granted the plaintiffs motion to dismiss the affirmative defense of lack of jurisdiction over the defendant Alan Rothschild, as he failed to “swear to specific facts in support of any denial of proper service” (European Am. Bank v Abramoff, 201 AD2d 611, 612), and the affidavit by Rothschild’s father “was insufficient to establish prima facie plaintiffs failure to obtain personal jurisdiction over [him]” (New York State Higher Educ. Servs. Corp. v De John, 224 AD2d 904).

O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

248 A.D.2d 427, 668 N.Y.S.2d 947, 1998 N.Y. App. Div. LEXIS 2320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-city-of-new-york-nyappdiv-1998.

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