Inglesias v. Baptist Medical Center

94 A.D.2d 738, 462 N.Y.S.2d 489, 1983 N.Y. App. Div. LEXIS 18186

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 16, 1983
• Status: Published

Opinion

— In a medical malpractice action, defendant Pher (sued herein as Pher) appeals from an order of the Supreme Court, Kings County (Dowd, J.), dated October 21,1982, which granted the part of plaintiff’s motion that sought authorization for expedient service upon her pursuant to CPLR 308 (subd 5), and dismissed said defendant’s affirmative defense of lack of jurisdiction. Order reversed, with costs, and action remitted to Special Term for further proceedings consistent herewith. Special Term erred in authorizing service upon appellant pursuant to CPLR 308 (subd 5) in the absence of a proper showing by the plaintiff that service upon her was “impracticable” under CPLR 308 (subds 1, 2, 4) (see Booth v Lipton, 87 AD2d 856). Whether plaintiff’s initial attempt at service complied with the requirements of CPLR 308 (subd 2) should await resolution of contested facts at a traverse hearing concerning service on a person of suitable age and discretion and mailing of a copy of the summons to appellant’s last known residence (see Stylianou v Tsourides, 73 AD2d 642; Giordano v McMurtry, 72 AD2d 507). Titone, J. P., Lazer, Thompson and Weinstein, JJ., concur.