Vitale v. Gelfand

110 A.D.2d 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1985
• Status: Published

Opinion

Under the circumstances of this case, in which the validity of service upon the appellant depends entirely upon the exact date on which the summons in the action was delivered to the Suffolk County Sheriff pursuant to CPLR 203 (b) (5), the apparent discrepancy between the date upon which the summons was “time-stamped” by the Sheriff’s Department and the affidavit of the deputy sheriff who accepted delivery necessitates a hearing at which the appropriate documents can be produced and the various proponents of the operative facts can be subjected to cross-examination (cf. Stylianou v Tsourides, 73 AD2d 642; Empire Natl. Bank v Judal Constr., 61 AD2d 789).

We pass upon no further issue. Gibbons, J. P., Weinstein, Brown and Niehoff, JJ., concur.