Maltaghati v. Long Island Rail Road

159 A.D.2d 697, 553 N.Y.S.2d 1011, 1990 N.Y. App. Div. LEXIS 3641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 26, 1990
• Status: Published

Opinion

In an action to recover damages for personal injury and wrongful death, the defendants Long Island Rail Road Company and Metropolitan Transit Authority appeal from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered July 20, 1988, as denied, without a hearing, their motion to dismiss the complaint insofar as it is asserted against them.

Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for an immediate trial pursuant to CPLR 3212 (c) in accordance herewith.

We conclude that the Supreme Court erred in summarily the motion the defendants Island Rail Road Company and Metropolitan Transit Authority to dismiss the complaint insofar as it is asserted against them on the basis that the summons was untimely served pursuant to Public Authorities Law § 1276. The appellants’ motion papers, coupled with the respondent’s admission that the original affidavits of service were in error, were sufficient to raise an issue of fact as to the actual date of service of the summons. In view thereof, that branch of the Supreme Court’s order which summarily denied the appellants’ motion is reversed and the matter is remitted for a hearing on this issue. Brown, J. P., Eiber, Harwood and Rosenblatt, JJ., concur.