Michaelson v. Hudson

Appellate Division of the Supreme Court of New York

Michaelson v. Hudson

142 A.D.2d 560, 530 N.Y.S.2d 225, 1988 N.Y. App. Div. LEXIS 7299

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

DecidedJuly 5, 1988

StatusPublished

Cited by1 cases

This text of 142 A.D.2d 560 (Michaelson v. Hudson) 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

Michaelson v. Hudson, 142 A.D.2d 560, 530 N.Y.S.2d 225, 1988 N.Y. App. Div. LEXIS 7299 (N.Y. Ct. App. 1988).

Pincite

Opinion

— In an action for a judgment declaring the parties’ rights under a lease, the defendants appeal from so much of an order of the Supreme Court, Kings County (Williams, J.), dated July 10, 1987, which denied their motion to dismiss the complaint, pursuant to CPLR 3211 (a) (8), for lack of personal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted and the complaint is dismissed.

In the Supreme Court, the plaintiffs did not contradict the assertions in the defendants’ affidavits in support of their motion to dismiss, that the only service of a summons and complaint in this case was done by mailing those documents to the defendants’ post-office box by ordinary mail. No justification was offered for the lack of personal service (CPLR 308 [1], [2]), no affidavit of personal service of the summons and complaint is contained in the record on appeal, and no explanation was suggested as to why the process was not affixed to the door of the defendants’ residence (CPLR 308 [4]). Thus, the service was defective and the motion to dismiss should have been granted (see, Martini v Powers, 105 AD2d 731; De Zego v Donald F. Bruhn, P. C., 99 AD2d 823).

Further, the defendants’ appearance in this action cannot act as a substitute for personal service because their answer contained an affirmative defense alleging lack of personal [561]*561jurisdiction (CPLR 320 [b]; Matter of Katz, 81 AD2d 145, 148-149, affd 55 NY2d 904 on opn at App Div; Colbert v International Sec. Bur., 79 AD2d 448, lv denied 53 NY2d 608). Similarly, the defendants’ actual notice of the action did not cure the defective service "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

— In an action for a judgment declaring the parties’ rights under a lease, the defendants appeal from so much of an order of the Supreme Court, Kings County (Williams, J.), dated July 10, 1987, which denied their motion to dismiss the complaint, pursuant to CPLR 3211 (a) (8), for lack of personal jurisdiction.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted and the complaint is dismissed.

In the Supreme Court, the plaintiffs did not contradict the assertions in the defendants’ affidavits in support of their motion to dismiss, that the only service of a summons and complaint in this case was done by mailing those documents to the defendants’ post-office box by ordinary mail. No justification was offered for the lack of personal service (CPLR 308 [1], [2]), no affidavit of personal service of the summons and complaint is contained in the record on appeal, and no explanation was suggested as to why the process was not affixed to the door of the defendants’ residence (CPLR 308 [4]). Thus, the service was defective and the motion to dismiss should have been granted (see, Martini v Powers, 105 AD2d 731; De Zego v Donald F. Bruhn, P. C., 99 AD2d 823).

Further, the defendants’ appearance in this action cannot act as a substitute for personal service because their answer contained an affirmative defense alleging lack of personal [561]*561jurisdiction (CPLR 320 [b]; Matter of Katz, 81 AD2d 145, 148-149, affd 55 NY2d 904 on opn at App Div; Colbert v International Sec. Bur., 79 AD2d 448, lv denied 53 NY2d 608). Similarly, the defendants’ actual notice of the action did not cure the defective service "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241). Thompson, J. P., Spatt, Sullivan and Harwood, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

142 A.D.2d 560, 530 N.Y.S.2d 225, 1988 N.Y. App. Div. LEXIS 7299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michaelson-v-hudson-nyappdiv-1988.

Opinion

Related

Cite This Page — Counsel Stack