Donnelly v. St. Luke's Roosevelt Hospital Center

191 A.D.2d 343, 596 N.Y.S.2d 2

Opinion

—Order, Supreme Court, New York County (Helen Freedman, J.), entered May 21, 1991, which, after a hearing, granted defendant-respondent’s motion to dismiss the action as against him for lack of jurisdiction, unanimously affirmed, without costs.

In dismissing the action as against defendant-respondent for lack of jurisdiction, the IAS Court credited the testimony of his secretary that no process server had been to the office on the date of the alleged service. This determination of credibility rested upon a fair interpretation of the evidence, inasmuch as there were significant discrepancies between the testimony of plaintiffs’ process server especially in regard to the appearance of defendant’s secretary upon whom service purportedly was made and that of defendant’s secretary generally. Such a determination should not be disturbed on appeal (see, Laurence v Hillcrest Gen. Hosp., 119 AD2d 808).

We have considered plaintiffs’ argument that defendant should be estopped from invoking the defense of lack of jurisdiction, and find it to be without merit. Concur — Murphy, P. J., Carro, Rosenberger and Kassal, JJ.