Newman & Leventhal, Inc. v. Sanders

115 A.D.2d 360, 495 N.Y.S.2d 400, 1985 N.Y. App. Div. LEXIS 54763

Opinion

Order of the Supreme Court, New York County (Richard W. Wallach, J.), entered December 17, 1984, which denied appellant Newman & Leventhal, Inc.’s motion seeking partial summary judgment on its first cause of action and dismissal of respondents Sanders’ answer and defenses in action No. 1 and respondents’ causes of action asserted in action No. 2 and held that branch of the motion seeking to strike the affirmative defense of lack of personal jurisdiction in action No. 1 in abeyance pending a report after reference upon this issue, is unanimously modified, on the law, to strike the defense of lack of jurisdiction and vacate the direction for a hearing, and otherwise affirmed, without costs.

The affidavit of service completely reflects the date and time of the service of the summons with notice, a complete description of the individual served and an assertion that a copy of the summons with notice was mailed to Mr. Sanders’ residence. The papers in opposition do not contain any affidavit or statement based upon personal knowledge that defendant Stanley Sanders failed to receive a copy of the summons with notice in the mail and are therefore insufficient to raise an issue of fact. Since the affidavit of the process server was unrebutted, Special Term should have granted that branch of appellant’s motion seeking dismissal of the defense of lack of jurisdiction. We have examined the remaining contentions of appellant and find them to be without merit. Concur—Sandler, J. P., Ross, Asch, Milonas and Ellerin, JJ.