Del Priore v. Furnival Machinery Co.

124 A.D.2d 695, 508 N.Y.S.2d 206, 1986 N.Y. App. Div. LEXIS 62002

Opinion

We agree with the plaintiffs’ contention that the hearing which was held pursuant to an order of the same court (Hurowitz, J.), dated February 23, 1984, was not warranted with respect to the respondent Trebor Construction, Inc., a corporation. The plaintiffs’ motion papers included an affidavit evidencing service upon that respondent by service upon the Secretary of State (see, CPLR 310, 311 [1]; Business Corporation Law § 306). Since this affidavit of service was not controverted, by the respondents’ sworn denial or otherwise, it was sufficient proof of service (cf. Olmo v Olmo, 102 AD2d 864; Green Point Sav. Bank v Taylor, 92 AD2d 910). Moreover, service was properly effected upon the respondent J J F & L Development Associates, a limited partnership, by service upon the respondent Trebor Construction, Inc., a general partner of that limited partnership (see, CPLR 310, 311 [1]; Business Corporation Law § 306; Hickey v Naruth Realty Corp., 71 AD2d 668).

With respect to the other respondents, D-G Company, Joseph J. Rains Company, Frank Vurckio and Joseph Silver-man, the plaintiffs’ motion papers and supporting affidavits of service did not conclusively establish proper service upon them. However, at the hearing, the plaintiffs did provide proof of service upon these respondents, by the process server’s testimony and additional affidavits of service, which evidence was not adequately refuted by these respondents (see, CPLR 308 [2]; 310; Hickey v Naruth Realty Corp., supra). Bracken, J. P., Niehoff, Lawrence and Kunzeman, JJ., concur.