Frankel v. Winter

180 A.D.2d 549

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1992
• Status: Published

Opinion

Order and judgment (one paper) Supreme Court, New York County (Irma Vidal Santaella, J.), entered January 8, 1991, which granted defendants’ motion to confirm a Special Referee’s report recommending dismissal of the action for lack of personal jurisdiction, unanimously affirmed, with costs.

The question of jurisdiction turns first on the credibility of plaintiffs’ process server’s testimony that he delivered the summons to the person described in his affidavit of service, and second, whether such person is the managing agent of the corporate defendant and a person of suitable age and discretion at the individual defendant’s actual place of business. At the hearing, plaintiffs’ process server’s testimony was contradicted by a disinterested witness, who testified that only she and her husband were present when the process server arrived at the office suite occupied by various tenants, that her husband informed the process server that the defendants were not present and that they were not authorized to accept process, and that a short while after the process server left the suite with the documents, when she and her husband exited the office to lock up for the night, she noticed the papers had been left on the floor in front of the door. The Referee having credited the testimony of the disinterested witness, and his findings being supported by the record, his report was properly confirmed (Plaza Funding Corp. v J. C. Dev. Corp., 155 AD2d 298). Concur — Murphy, P. J., Wallach, Kupferman, Asch and Smith, JJ.