Popkin v. Xerox Corp.

Appellate Division of the Supreme Court of New York

Popkin v. Xerox Corp.

204 A.D.2d 704, 612 N.Y.S.2d 250, 1994 N.Y. App. Div. LEXIS 5782

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

DecidedMay 31, 1994

StatusPublished

Cited by1 cases

This text of 204 A.D.2d 704 (Popkin v. Xerox Corp.) 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.

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Popkin v. Xerox Corp., 204 A.D.2d 704, 612 N.Y.S.2d 250, 1994 N.Y. App. Div. LEXIS 5782 (N.Y. Ct. App. 1994).

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Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Collins, J.), dated July 8, 1992, which, after a hearing, granted the defendant’s motion to dismiss the complaint based on lack of [705]*705personal jurisdiction and denied the plaintiffs’ cross motion for dismissal of the defense of lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

At a hearing, it was established that the process server attempted to serve the summons on Betty Schwartz, who described her position as financial control manager for the defendant’s suburban district office in Woodbury. Schwartz further indicated that she supervised eight or nine employees in the office, and that the defendant maintained approximately 65 district offices in this country. According to Schwartz’s testimony, which was credited by the Supreme Court, although she advised the process server that she was not authorized to accept service of legal papers and that all legal papers should be served at the defendant’s corporate headquarters in Stamford, Connecticut, he nevertheless ignored her instructions and threw the summons down on the receptionist’s desk. Under these circumstances, we find that it was not reasonable for the process server to conclude that Ms. Schwartz was a "managing agent” as contemplated by CPLR 311 (1). Accordingly, service in this case was invalid (cf., Psathas v Catskills Regional Off-Track Betting Corp., 173 AD2d 1070; Carlin v Crum & Foster Ins. Co., 170 AD2d 251). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Collins, J.), dated July 8, 1992, which, after a hearing, granted the defendant’s motion to dismiss the complaint based on lack of [705]*705personal jurisdiction and denied the plaintiffs’ cross motion for dismissal of the defense of lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

At a hearing, it was established that the process server attempted to serve the summons on Betty Schwartz, who described her position as financial control manager for the defendant’s suburban district office in Woodbury. Schwartz further indicated that she supervised eight or nine employees in the office, and that the defendant maintained approximately 65 district offices in this country. According to Schwartz’s testimony, which was credited by the Supreme Court, although she advised the process server that she was not authorized to accept service of legal papers and that all legal papers should be served at the defendant’s corporate headquarters in Stamford, Connecticut, he nevertheless ignored her instructions and threw the summons down on the receptionist’s desk. Under these circumstances, we find that it was not reasonable for the process server to conclude that Ms. Schwartz was a "managing agent” as contemplated by CPLR 311 (1). Accordingly, service in this case was invalid (cf., Psathas v Catskills Regional Off-Track Betting Corp., 173 AD2d 1070; Carlin v Crum & Foster Ins. Co., 170 AD2d 251). Bracken, J. P., Miller, Copertino, Santucci and Altman, JJ., concur.

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204 A.D.2d 704, 612 N.Y.S.2d 250, 1994 N.Y. App. Div. LEXIS 5782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popkin-v-xerox-corp-nyappdiv-1994.

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