De Zego v. Bruhn, M. D., P. C.

492 N.E.2d 1217, 67 N.Y.2d 875, 501 N.Y.S.2d 801, 1986 N.Y. LEXIS 17664

• Court: New York Court of Appeals
• Decided: March 20, 1986
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

We agree with the Appellate Division that plaintiffs failed to meet their burden of proving service outside the State (see, CPLR 313) pursuant to CPLR 308 (1). The affidavits of service are devoid of the requisite factual and descriptive information to show that plaintiffs’ summons and complaint were delivered to defendant personally (see, CPLR 306 [a], [b]). Moreover, even if, as plaintiffs contend, the affidavits were entitled to a general presumption of regularity (see, CPLR 4520), that presumption was overcome by defendant’s sworn testimony which plaintiffs failed to rebut with any additional evidence (see, Richardson, Evidence § 72 [Prince 10th ed]). Regarding other methods of service, plaintiffs’ affidavits do not even purport to establish service upon defendant through a person of suitable age and discretion pursuant to CPLR 308 (2), and, inasmuch as it was conceded at oral argument that a professional corporation is not involved in this case, it is unnecessary to consider whether plaintiffs satisfied the requirements for service upon such a corporation. Accordingly, the complaint was properly dismissed for plaintiffs’ failure to obtain personal jurisdiction over defendant.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander and Hancock, Jr., concur; Judge Titone taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.