Sitaras v. James Ricciardi & Sons, Inc.

76 A.D.2d 860, 428 N.Y.S.2d 703, 1980 N.Y. App. Div. LEXIS 11918

Opinion

In a negligence action to recover damages for personal injuries, defendants appeal from (1) an order of the Supreme Court, Kings County, dated December 14, 1978, which, inter alia, denied their motion to dismiss the action as abandoned and directed a "hearing on service,” and (2) an order of the same court, entered January 15, 1979, which, after a hearing, inter alia, found that the defendants were properly served. Order dated December 14, 1978 affirmed. Order entered January 15, 1979 modified by deleting therefrom the provision which held that defendant Ronald De George had been properly served and by adding thereto a provision that said defendant is estopped from denying that he was properly served with process herein. As so modified, order affirmed. The plaintiffs are awarded one bill of costs payable by the defendants. There is insufficient proof that a copy of the summons was mailed to the individual defendant as required by CPLR 308 (subd 2) (Richardson, Evidence [Prince, 10th ed], § 80, p 56). However, on this record, including the testimony before the referee, we find that the individual defendant is estopped from claiming improper service by the settlement negotiations conducted by the defendants’ insurer with the plaintiffs’ former attorney. We agree with the referee’s finding that the corporate defendant was properly served. Mangano, J. P., Gibbons, Rabin and Gulotta, JJ., concur.