Silverman v. St. Vincent's Hospital & Medical Center

197 A.D.2d 459, 603 N.Y.S.2d 39, 1993 N.Y. App. Div. LEXIS 10006

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 26, 1993
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Stanley Ostrau, J.), entered October 8, 1992, which dismissed the complaint against defendants, and order of said court and Justice, entered March 30, 1992 which granted defendant Walsh’s motion to vacate the service on Walsh pursuant to its prior ex parte order, brought up for review on the appeal from the final judgment, unanimously affirmed, without costs.

In light of the fact that plaintiff failed to adequately establish that it would be impracticable for her to again attempt to serve Walsh pursuant to CPLR 308 (2), there were no grounds for the court to direct expedient service upon defendant’s counsel pursuant to CPLR 308 (5) (see, Simens v Sedrish, 82 AD2d 915).

Nor is there any merit to plaintiff’s challenge to the Judicial Hearing Officer’s well-founded determination that plaintiff had failed to sustain the burden of proving that the person actually served either worked with or was employed by Walsh, which thereby rendered the initial attempt at service ineffective.

We have considered all other claims and find them to be meritless. Murphy, P. J., Kupferman, Ross and Rubin, JJ.