Said v. Abarn Equipment Corp.

Appellate Terms of the Supreme Court of New York

Said v. Abarn Equipment Corp.

195 Misc. 2d 451, 757 N.Y.S.2d 836, 2002 N.Y. Misc. LEXIS 1828

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 29, 2002

StatusPublished

This text of 195 Misc. 2d 451 (Said v. Abarn Equipment Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Said v. Abarn Equipment Corp., 195 Misc. 2d 451, 757 N.Y.S.2d 836, 2002 N.Y. Misc. LEXIS 1828 (N.Y. Ct. App. 2002).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that, upon reargument, defendant’s motion to dismiss the complaint is granted; as so modified, affirmed with $10 costs.

[452]*452Defendant’s cross motion, in effect, sought reargument of the branch of the order, entered August 22, 2001, which implicitly denied that part of its prior preanswer motion to dismiss the complaint on the ground of improper service (see CPLR 2221 [d]). However, upon reargument, the court denied defendant’s motion on a ground which did not exist at the time of its initial motion, to wit, that pursuant to CPLR 3211 (e), defendant had waived the defense of improper service. Thus, the court erred in denying defendant’s motion on said ground even though defendant had served its answer in the interim in which it alleged that the court lacked jurisdiction over it. Upon granting reargument, the court was obliged to review the propriety of its prior order under the facts as they existed as of August 22, 2001.

Upon our review of the record with respect to defendant’s original motion to dismiss, it is apparent that the motion should have been granted inasmuch as the affidavit of service stated that service of process was effected on a Sunday, and it is well settled that such service is void (see General Business Law § 11; Foster v Piasecki, 259 AD2d 804 [1999]). To the extent plaintiff subsequently attempted to impeach the affidavit of service executed by his process server, he failed to establish that he possessed personal knowledge of the facts concerning service so as to properly refute the contents of said affidavit. Nor did he proffer a reasonable excuse for his failure to refute the affidavit of service in opposition to defendant’s initial motion to dismiss the complaint.

Patterson, J.P., Golia and Rios, JJ., concur.

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

OPINION OF THE COURT

Memorandum.

Order unanimously modified by providing that, upon reargument, defendant’s motion to dismiss the complaint is granted; as so modified, affirmed with $10 costs.

[452]*452Defendant’s cross motion, in effect, sought reargument of the branch of the order, entered August 22, 2001, which implicitly denied that part of its prior preanswer motion to dismiss the complaint on the ground of improper service (see CPLR 2221 [d]). However, upon reargument, the court denied defendant’s motion on a ground which did not exist at the time of its initial motion, to wit, that pursuant to CPLR 3211 (e), defendant had waived the defense of improper service. Thus, the court erred in denying defendant’s motion on said ground even though defendant had served its answer in the interim in which it alleged that the court lacked jurisdiction over it. Upon granting reargument, the court was obliged to review the propriety of its prior order under the facts as they existed as of August 22, 2001.

Upon our review of the record with respect to defendant’s original motion to dismiss, it is apparent that the motion should have been granted inasmuch as the affidavit of service stated that service of process was effected on a Sunday, and it is well settled that such service is void (see General Business Law § 11; Foster v Piasecki, 259 AD2d 804 [1999]). To the extent plaintiff subsequently attempted to impeach the affidavit of service executed by his process server, he failed to establish that he possessed personal knowledge of the facts concerning service so as to properly refute the contents of said affidavit. Nor did he proffer a reasonable excuse for his failure to refute the affidavit of service in opposition to defendant’s initial motion to dismiss the complaint.

Patterson, J.P., Golia and Rios, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

195 Misc. 2d 451, 757 N.Y.S.2d 836, 2002 N.Y. Misc. LEXIS 1828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/said-v-abarn-equipment-corp-nyappterm-2002.

Opinion

Related

Cite This Page — Counsel Stack