Terlizzi v. Brodie

38 A.D.2d 762, 329 N.Y.S.2d 589, 1972 N.Y. App. Div. LEXIS 5501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1972
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated July 23, 1971, as, after granting reargument of their motion to vacate service of the summons, adhered to the original decision denying the motion. Order reversed insofar as appealed from, on the law and on the facts, and motion granted, with $10 costs and disbursements. In May or June, 1968 defendants, New Jersey residents, were in an automobile collision in New Jersey which caused plaintiffs, New York residents, to sustain injuries. In February, 1971 defendants were called at home and told that they had been chosen to receive two tickets to a Broadway show as a promotional venture to get their opinion on a questionnaire of the new 7:30 p.m. curtain time. After the performance and while still in the theatre, defendants were served with a summons in this action by a man who had been sitting behind them. No questionnaire had been given them. Plaintiffs have presented no facts concerning the service to refute defendants’ claim and have not submitted an affidavit of the investigator retained to effect service. It has long been held that where a defendant has been lured into this jurisdiction by fraud or deceit in order that he may be served, the service so effected is invalid (Neotex Mfg. Co. v. Eidinger, 250 App. Div. 504; Shillman v. Toutlson, 211 App. Div. 336; Garabettian v. Garabettian, 206 App. Div. 502). In our opinion, the service was invalid and the motion should have been granted. Latham, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.