Aversano v. Town of Brookhaven
| Decision Date | 28 July 1980 |
| Parties | Augustus AVERSANO et al., Respondents, v. The TOWN OF BROOKHAVEN, County of Suffolk, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Maloney, Murphy, Moscatt & McLoone, Mineola (Mark J. Hanlon, Poughkeepsie, of counsel), for appellant.
Joel L. Jacobson, Melville, for respondents.
Before LAZER, J. P., and GIBBONS, MARTUSCELLO and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Suffolk County, dated September 18, 1979, which denied its motion to set aside service of process based upon plaintiffs' failure to comply with CPLR 305 (subd. (b)) and to dismiss the complaint for lack of jurisdiction of the person of the defendant.
Order affirmed, without costs or disbursements.
About three months before the expiration of the Statute of Limitations, the plaintiffs served a summons without the notice required under CPLR 305 (subd. (b)). The defendant responded with a notice of appearance and a demand for a complaint, and before receipt of the complaint, but after expiration of the Statute of Limitations, moved to dismiss on the ground of lack of jurisdiction. Special Term denied the motion, noting that defendant had received a notice of claim and concluding that the failure to comply with CPLR 305 (subd. (b)) was jurisdictional only in the case of a default judgment.
In affirming, we note our agreement with Mr. Justice FEIN's cogent analysis of CPLR 305 (subd. (b)) in Bal v. Court Employment Project, 73 A.D.2d 69, 71, 424 N.Y.S.2d 715, and his conclusion that in evaluating the consequences of a failure to place a 305 (subd. (b)) endorsement upon a summons, "(s)ervice of the notice of appearance should be held to confer jurisdiction unless it is lacking on some ground other than adequacy of the notice." As Mr. Justice FEIN further observed (p. 71, 424 N.Y.S.2d p. 717):
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...463, 425 N.E.2d 851, cert. denied sub nom. Guertin Co. v. Cachat, 454 U.S. 1086, 102 S.Ct. 644, 70 L.Ed.2d 621; Aversano v. Town of Brookhaven, 77 A.D.2d 641, 430 N.Y.S.2d 133). In any event, in no sense could the purported defect be deemed jurisdictional (Valz v. Sheepshead Bay Bungalow Co......
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