Volin v. City Beach Catering Corp.

172 A.D.2d 660, 570 N.Y.S.2d 961, 1991 N.Y. App. Div. LEXIS 5545

Opinion

In a negligence action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Hurowitz, J.), dated October 2, 1989, as denied that branch of his motion as was to dismiss five of the six defenses asserted in the defendant’s answer.

Ordered that the order is modified, on the law, by deleting the provision denying those branches of the plaintiff’s motion which were to dismiss the defenses of lack of personal jurisdiction and the Statute of Limitations, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As is evidenced by the affidavit of service and the receipt from the Secretary of State, the defendant corporation was served with process correctly and in a timely fashion. Therefore, the defenses of lack of personal jurisdiction and the Statute of Limitations should have been dismissed.

The plaintiff has failed to establish that the remaining defenses asserted in the defendant’s answer have no merit (see, CPLR 3211 [b]). Therefore, the Supreme Court did not err in denying so much of the plaintiff’s motion as was to dismiss those defenses. Thompson, J. P., Brown, Harwood and Balletta, JJ., concur.