Quality King Distributors v. Krinsky Enterprises, Inc.

147 A.D.2d 624, 538 N.Y.S.2d 32, 1989 N.Y. App. Div. LEXIS 2014

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1989
• Status: Published

Opinion

— In an action to recover damages for injury to property, the defendant Celsius Service Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), entered July 10, 1987, as in denying that branch of its motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (5), failed to order a hearing to determine the validity of the service of process upon it. The defendant Suffolk Mechanical Contractors filed a notice of appeal from the same order.

Ordered that the appeal by Suffolk Mechanical Contractors is dismissed as abandoned, without costs or disbursements; and it is further,

Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing in accordance herewith.

Since — as the plaintiff concedes — the validity of. service upon the appellant is dependent upon the precise date on which the summons was delivered to the Suffolk County Sheriff (see, CPLR 203 [b] [5]), the discrepancy between the date stamped on the summons by the Sheriffs office and the documentary proof offered by the plaintiff necessitates a hearing at which "the various proponents of the operative facts can be subjected to cross-examination” (Vitale v Gelfand, 110 AD2d 696). Bracken, J. P., Lawrence, Kooper and Sullivan, JJ., concur.