Maldonado v. County of Suffolk

Appellate Division of the Supreme Court of New York

Maldonado v. County of Suffolk

229 A.D.2d 376, 644 N.Y.S.2d 572, 1996 N.Y. App. Div. LEXIS 7603

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

DecidedJuly 1, 1996

StatusPublished

Cited by5 cases

This text of 229 A.D.2d 376 (Maldonado v. County of Suffolk) 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

Maldonado v. County of Suffolk, 229 A.D.2d 376, 644 N.Y.S.2d 572, 1996 N.Y. App. Div. LEXIS 7603 (N.Y. Ct. App. 1996).

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Opinion

---In a negligence action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated July 5, 1995, which, after a hearing, in effect denied its motion for summary judgment dismissing the complaint for lack of personal jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly concluded that the plaintiffs obtained jurisdiction over the County of Suffolk (hereinafter [377]*377the County). The affidavit of service by the plaintiffs’ process server which specified, inter alia, "the papers served, the person who was served and the date, time, address * * * and set forth facts showing that the service was made by an authorized person and in an authorized manner” (CPLR 306 [a]), constituted prima facie evidence of proper service (see, Sando Realty Corp. v Aris, 209 AD2d 682; European Am. Bank v Abramoff, 201 AD2d 611, 612). In the absence of a sworn denial that the County was so served, no hearing was necessary on this issue (see, Sando Realty Corp. v Aris, supra; European Am. Bank v Abramoff, supra).

Moreover, although the plaintiffs may have served the County with a summons which did not "bear the index number assigned and the date of filing with the clerk of the court” (CPLR 305 [a]), the omission was not a jurisdictional defect (see, Cellular Tel. Co. v Village of Tarrytown, 209 AD2d 57, 64). In any event, the record establishes that the County was served with a summons which did, in fact, contain both an index number and the filing date. Under these circumstances, dismissal of the action was not warranted (see, Cellular Tel. Co. v Village of Tarrytown, supra).

Finally, the plaintiffs proved by a preponderance of the evidence (see, Matter of Griffin v Griffin, 215 AD2d 386) that they served the County in compliance with CPLR 311 (4). Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.

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---In a negligence action to recover damages for personal injuries, etc., the defendant County of Suffolk appeals from an order of the Supreme Court, Suffolk County (Cannavo, J.), dated July 5, 1995, which, after a hearing, in effect denied its motion for summary judgment dismissing the complaint for lack of personal jurisdiction.

Ordered that the order is affirmed, without costs or disbursements.

The Supreme Court properly concluded that the plaintiffs obtained jurisdiction over the County of Suffolk (hereinafter [377]*377the County). The affidavit of service by the plaintiffs’ process server which specified, inter alia, "the papers served, the person who was served and the date, time, address * * * and set forth facts showing that the service was made by an authorized person and in an authorized manner” (CPLR 306 [a]), constituted prima facie evidence of proper service (see, Sando Realty Corp. v Aris, 209 AD2d 682; European Am. Bank v Abramoff, 201 AD2d 611, 612). In the absence of a sworn denial that the County was so served, no hearing was necessary on this issue (see, Sando Realty Corp. v Aris, supra; European Am. Bank v Abramoff, supra).

Moreover, although the plaintiffs may have served the County with a summons which did not "bear the index number assigned and the date of filing with the clerk of the court” (CPLR 305 [a]), the omission was not a jurisdictional defect (see, Cellular Tel. Co. v Village of Tarrytown, 209 AD2d 57, 64). In any event, the record establishes that the County was served with a summons which did, in fact, contain both an index number and the filing date. Under these circumstances, dismissal of the action was not warranted (see, Cellular Tel. Co. v Village of Tarrytown, supra).

Finally, the plaintiffs proved by a preponderance of the evidence (see, Matter of Griffin v Griffin, 215 AD2d 386) that they served the County in compliance with CPLR 311 (4). Mangano, P. J., Thompson, Florio and McGinity, JJ., concur.

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229 A.D.2d 376, 644 N.Y.S.2d 572, 1996 N.Y. App. Div. LEXIS 7603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maldonado-v-county-of-suffolk-nyappdiv-1996.

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