Foy v. 1120 Avenue of the Americas Associates

223 A.D.2d 232, 646 N.Y.S.2d 547, 1996 N.Y. App. Div. LEXIS 8589
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 19, 1996
StatusPublished
Cited by7 cases

This text of 223 A.D.2d 232 (Foy v. 1120 Avenue of the Americas Associates) 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
Foy v. 1120 Avenue of the Americas Associates, 223 A.D.2d 232, 646 N.Y.S.2d 547, 1996 N.Y. App. Div. LEXIS 8589 (N.Y. Ct. App. 1996).

Opinion

OPINION OF THE COURT

Balletta, J. P.

The question raised by this appeal is whether the 1991 amendments to CPLR 310 pertaining to service upon a partnership (see, L 1991, ch 338) represent a narrowing of the methods available to serve a partnership or a liberalization of service upon a partnership. We conclude that in this case substituted service upon one of the partners pursuant to CPLR 308 (2) constituted service upon the partnership pursuant to CPLR 310 (a).

On March 20, 1990, at approximately 7:30 a.m., the plaintiff, John Foy, allegedly slipped and fell in the lobby of the Hippodrome Building located at 1120 6th Avenue, Manhattan. The plaintiff commenced the instant negligence action against the Hippodrome Building and 1120 Avenue of the Americas Associates, the limited partnership which owned the Hippodrome Building (hereinafter the defendant), in January 1993.

The defendant moved to dismiss the complaint on the grounds of lack of jurisdiction and improper service. Although the Supreme Court, Kings County (Vaccaro, J.), by an order dated June 22, 1994, granted the defendant’s motion, the court also granted the plaintiff permission to commence another action pursuant to CPLR 306-b (b) within 120 days of the date of the order. If the plaintiff failed to properly effectuate service upon the defendant within the 120-day period, then the action would be deemed dismissed with prejudice and the plaintiff would not be afforded any further opportunity to serve the defendant.

The plaintiff subsequently attempted to serve the new summons and complaint in early October 1994. In order to obtain jurisdiction over the defendant, the plaintiff’s process server went to the Newark, New Jersey, office of one of the partners, Harold Gottesman, left the summons and complaint with Gottesman’s administrative assistant and mailed copies to Gottesman’s last known address. The partnership again moved to dismiss on the grounds of lack of jurisdiction and improper service. The plaintiff opposed the motion, arguing that proper [234]*234service had been made upon one of the partners by leaving the papers with the administrative assistant who was a person of "suitable age and discretion” as defined by CPLR 308 (2). After a hearing was conducted with respect to service, the Supreme Court (Ramirez, J.), by order dated March 20, 1995, denied the defendant’s motion on the ground that service had been properly effectuated.

On appeal, the defendant argues that the purpose of the 1991 amendments to CPLR 310 (L 1991, ch 338, § 1) was to limit the available service options to those specifically mentioned in the newly amended CPLR 310, which governs service upon partnerships. Significantly, the defendant neither argues that the plaintiff’s service failed to comply with the requirements of CPLR 308 (2) nor challenges the factual assessment impliedly made by the court in upholding service.

It is well settled that "[s]ervice is only effective * * * when it is made pursuant to the appropriate method authorized by the CPLR” (Markoff v South Nassau Community Hosp., 61 NY2d 283, 288; Feinstein v Bergner, 48 NY2d 234, 241). It is also well settled that in New York a court obtains jurisdiction over a partnership when, inter alia, "personal service is made on any partner, even if the other individual partners or partnership as an entity would not otherwise be subject to jurisdiction in New York” (1 Weinstein-Korn-Miller, NY Civ Prac ¶ 310.01; Hayes v Apples & Bells, 213 AD2d 1000; Brown v Sagamore Hotel, 184 AD2d 47). The threshold question here is precisely what the appropriate method authorized by the CPLR is with respect to personal service upon an individual partner where the objective is to acquire jurisdiction over the partnership.

Prior to 1991, CPLR 310 provided simply that: "Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them”.

In interpreting CPLR 310 as it existed before the 1991 amendments, this Court had construed the phrase "personally serving” as incorporating the substituted "leave and mail” service method set forth in CPLR 308 (2) (Marion Assocs. v Vitale, 172 AD2d 501; Searing v Anand, 127 AD2d 582; Hickey v Naruth Realty Corp., 71 AD2d 668; see also, 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 310.02).

CPLR 308, entitled "Personal service upon a natural person”, states, in part, that:

"Personal service upon a natural person shall be made by any of the following methods:

[235]*235"1. by delivering the summons within the state to the person to be served; or
"2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business * * * and by * * * mailing the summons to the person to be served at his or her last known residence”.

In 1991, the Legislature substantially reworked CPLR 310 (L 1991, ch 338, § 1), so that it now reads as follows:

"Personal Service upon a partnership
"(a) Personal service upon persons conducting a business as a partnership may be made by personally serving the summons upon any one of them.
"(b) Personal service upon said partnership may also be made within the state by delivering the summons to the managing or general agent of the partnership or the person in charge of the office of the partnership within the state at such office and by either mailing the summons to the partner thereof intended to be served by first class mail to his last known residence or to the place of business of the partnership. * * *
"(c) Where service under subdivisions (a) and (b) of this section cannot be made with due diligence, it may be made by affixing a copy of the summons to the door of the actual place of business of the partnership within the state and by either mailing the summons by first class mail to the partner intended to be so served to such person to his last known residence or to said person at the office of said partnership within the state. Proof of such service shall be filed within twenty days thereafter with the clerk of the court designated in the summons; service shall be complete ten days after filing.
"(d) Personal service on such partnership may also be made by delivering the summons to any other agent or employee of the partnership authorized by appointment to receive service; or to any other person designated by the partnership to receive process in writing, filed in the office of the clerk of the county wherein such partnership is located.
"(e) If service is impracticable under subdivisions (a), (b) and (c) of this section, it may be made in such manner as the court, upon motion without notice directs”.

The amendment was prompted by the belief that it was unduly difficult to serve a partnership under prior law (see, e.g., Cooney v East Nassau Med. Group, 136 AD2d 392 [service upon executive secretary of partnership without service upon any partner was ineffective to bring partnership within court’s ju[236]*236risdiction]; see also, Lawrence v Ruskin, 186 AD2d 485; Basaranlar v Pelham Bay Gen. Hosp., 133 AD2d 241; Italian Colony Rest. v Wershals, 45 AD2d 841).

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Bluebook (online)
223 A.D.2d 232, 646 N.Y.S.2d 547, 1996 N.Y. App. Div. LEXIS 8589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foy-v-1120-avenue-of-the-americas-associates-nyappdiv-1996.