Giordano v. McMurtry

Appellate Division of the Supreme Court of New York

Giordano v. McMurtry

72 A.D.2d 507, 421 N.Y.S.2d 2, 1979 N.Y. App. Div. LEXIS 13526

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 18, 1979

StatusPublished

Cited by1 cases

This text of 72 A.D.2d 507 (Giordano v. McMurtry) 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

Giordano v. McMurtry, 72 A.D.2d 507, 421 N.Y.S.2d 2, 1979 N.Y. App. Div. LEXIS 13526 (N.Y. Ct. App. 1979).

Pincite

Opinion

Order, Supreme Court, New York County, entered May 18, 1978, reversed, on the law, and the matter remanded for a hearing to determine the circumstances in which alleged service of process was made upon defendant-appellant, with costs. That service, in this medical malpractice case, was said to have been made upon an employee of a hospital wherein defendant-appellant doctor claims to have been no more than a renter of office space; this raises at least a question as to whether procedures set out in the hospital bulletin had any application whatever to him. It does not appear affirmatively either that appellant gave consent to having it made in such manner, or that any of the forms of service countenanced by CPLR 308 were employed. Certainly the "service” was never so directed by court order. There is no showing in the motion papers of a frustrated attempt at personal service or that circumstances of the type which were shown in duPont, Glore Forgan & Co. v Chen (53 AD2d 812, revd 41 NY2d 794, affd on remand 58 AD2d 789) existed in this case. In any event, Special Term should not have decided the issues tendered upon papers which presented issues of fact, and a hearing is required. Concur&emdash;Birns, J. P., Fein, Sullivan, Markewich and Lupiano, JJ.

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Order, Supreme Court, New York County, entered May 18, 1978, reversed, on the law, and the matter remanded for a hearing to determine the circumstances in which alleged service of process was made upon defendant-appellant, with costs. That service, in this medical malpractice case, was said to have been made upon an employee of a hospital wherein defendant-appellant doctor claims to have been no more than a renter of office space; this raises at least a question as to whether procedures set out in the hospital bulletin had any application whatever to him. It does not appear affirmatively either that appellant gave consent to having it made in such manner, or that any of the forms of service countenanced by CPLR 308 were employed. Certainly the "service” was never so directed by court order. There is no showing in the motion papers of a frustrated attempt at personal service or that circumstances of the type which were shown in duPont, Glore Forgan & Co. v Chen (53 AD2d 812, revd 41 NY2d 794, affd on remand 58 AD2d 789) existed in this case. In any event, Special Term should not have decided the issues tendered upon papers which presented issues of fact, and a hearing is required. Concur&emdash;Birns, J. P., Fein, Sullivan, Markewich and Lupiano, JJ.

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Bluebook (online)

72 A.D.2d 507, 421 N.Y.S.2d 2, 1979 N.Y. App. Div. LEXIS 13526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giordano-v-mcmurtry-nyappdiv-1979.

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