Pesner v. Fried

166 A.D.2d 512

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 1990
• Status: Published

Opinion

In an action to recover damages for dental malpractice, the plaintiffs appeal and the defendant Joel R. Fried, D.D.S., separately appeals from an order of the Supreme Court, Rockland County (Bergerman, J.), entered March 31, 1989, which dismissed the complaint as asserted against the defendant Harvey Shandler for lack of personal jurisdiction.

Ordered that the appeal by Joel R. Fried, D.D.S., is dismissed, without costs or disbursements (see, CPLR 5511); and it is further,

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

The plaintiffs attempted to serve the defendant Shandler pursuant to the substituted service provisions of CPLR 308 (2). However, the requisite mailing did not bear the legend "personal and confidential” on the envelope as required by the statute (see, CPLR 308 [2]). Since the plaintiffs failed to comply with the prescribed conditions, jurisdiction over Shandler was not acquired, and the complaint was properly dismissed as to him (see, Broomes-Simon v Klebanow, 160 AD2d 973). Kooper, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.