Kleinplatz v. Burstein

Appellate Division of the Supreme Court of New York

Kleinplatz v. Burstein

111 A.D.3d 500, 974 N.Y.S.2d 783

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

DecidedNovember 14, 2013

StatusPublished

This text of 111 A.D.3d 500 (Kleinplatz v. Burstein) 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

Kleinplatz v. Burstein, 111 A.D.3d 500, 974 N.Y.S.2d 783 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 2, 2013, which, after directing a traverse hearing in this action alleging legal malpractice, dismissed the complaint due to improper service, unanimously affirmed, without costs.

Plaintiff commenced this action by service of a summons with notice on October 13, 2008. On October 15, 2008, defendant’s counsel served on plaintiff a notice of appearance and demand for complaint. Defendant averred that the complaint was never received following the demand. Plaintiff contended that he served the complaint on October 14, 2008, sending it via first-class mail to defendant’s counsel, but he failed to submit clear evidence indicating that such mailing occurred. Under these circumstances, dismissal of the complaint was proper (see Forty Cent. Park S., Inc. v Kiss, 40 AD3d 236 [1st Dept 2007]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.E, Mazzarelli, Freedman, Richter and Feinman, JJ.

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Order, Supreme Court, New York County (Milton A. Tingling, J.), entered April 2, 2013, which, after directing a traverse hearing in this action alleging legal malpractice, dismissed the complaint due to improper service, unanimously affirmed, without costs.

Plaintiff commenced this action by service of a summons with notice on October 13, 2008. On October 15, 2008, defendant’s counsel served on plaintiff a notice of appearance and demand for complaint. Defendant averred that the complaint was never received following the demand. Plaintiff contended that he served the complaint on October 14, 2008, sending it via first-class mail to defendant’s counsel, but he failed to submit clear evidence indicating that such mailing occurred. Under these circumstances, dismissal of the complaint was proper (see Forty Cent. Park S., Inc. v Kiss, 40 AD3d 236 [1st Dept 2007]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.E, Mazzarelli, Freedman, Richter and Feinman, JJ.

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Bluebook (online)

111 A.D.3d 500, 974 N.Y.S.2d 783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinplatz-v-burstein-nyappdiv-2013.

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