Weiss v. Glatt Pack Kosher, Inc.

138 A.D.2d 591, 526 N.Y.S.2d 174, 1988 N.Y. App. Div. LEXIS 3151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 1988
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Morton, J.), dated March 13, 1987, which granted the defendants’ motion to dismiss the complaint on the ground of lack of personal jurisdiction.

Ordered that the order is affirmed, with costs.

Contrary to the plaintiffs’ contentions, the person served by their process server, who was stationed at a cash register to receive money from customers, was neither the "cashier” nor the "managing agent” of the defendant corporations (see, CPLR 311; Oustecky v Farmingdale Lanes, 41 Misc 2d 979; Colbert v International Sec. Bur., 79 AD2d 448, 449-455, lv denied 53 NY2d 608).

The plaintiffs did not present any evidence that the appropriate person to serve on behalf of the defendant corporations was avoiding service (see, McDonald v Ames Supply Co., 22 NY2d 111, 115), or that the process server made a proper inquiry of the defendant’s own employees, and delivered the summons according to their directions (see, Fashion Page v Zurich Ins. Co., 50 NY2d 265, 273).

Accordingly, the Supreme Court, Kings County, properly granted the defendants’ motion to dismiss the complaint on the ground of lack of personal jurisdiction (cf., Macchia v Russo, 67 NY2d 592, 595). Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur.