Ayala v. Bassett

Decision Date23 December 2008
Docket Number4882N.,4881.
PartiesMARGARITA AYALA et al., Respondents, v. SAADA A.R. BASSETT, Appellant.
CourtNew York Supreme Court — Appellate Division

Judgment, Supreme Court, Bronx County (Barry Salman, J.), entered July 16, 2007, awarding the adult plaintiffs the principal sum of $25,000 each, and the infant plaintiff the principal sum of $10,000, unanimously reversed, on the law, without costs, the awards vacated and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant dismissing the action. Appeal from order, same court (Wilma Guzman, J.), entered on or about May 5, 2008, which denied defendant's motion to vacate the judgment and dismiss the action for lack of personal jurisdiction, unanimously dismissed, without costs.

As gleaned from the face of the affidavit of service, the process server exercised due diligence in attempting to serve defendant personally with the summons and complaint before resorting to nail-and-mail service at the residential address defendant had provided to police at the time of the accident (see CPLR 308 [4]). The affidavit constituted prima facie evidence of proper service, indicating efforts to serve defendant at the residence on three different occasions (early morning, afternoon and evening) across a 22-day span (see e.g. Brown v Teicher, 188 AD2d 256 [1992]). When the burden thus shifted to defendant to rebut the presumption of proper service, she failed to offer an affidavit or other documentary evidence challenging the validity of the attempted service.

The default resolved the issue of which party was at fault, but the burden remained with plaintiffs to establish a prima facie case of serious injury at the inquest (Ortiz v Biswas, 4 AD3d 151 [2004]). Defendant's repeated objection to the admissibility of plaintiffs' unaffirmed or uncertified medical documents at the inquest preserved this challenge. Most of plaintiffs' medical evidence was not properly authenticated or affirmed, and thus was inadmissible (see Grasso v Angerami, 79 NY2d 813 [1991]; Shinn v Catanzaro, 1 AD3d 195 [2003]). The only admissible evidence — medical records of plaintiffs' radiologist and chiropractor — failed to establish that any of the plaintiffs suffered serious injury. The radiologist's MRI reports that found the two adult plaintiffs had suffered herniations were insufficient as those conditions were not causally related to the accident (see generally Pommells v Perez, 4 NY3d 566 [2005]). The chiropractor's medical reports alluded to specified findings of plaintiffs' range-of-motion limitations, but such findings were made approximately...

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12 cases
  • Wells Fargo Bank N.A. v. Podeswik
    • United States
    • New York Supreme Court — Appellate Division
    • February 13, 2014
    ...894, 662 N.Y.S.2d 885), or (a)(4) ( see Toyota Motor Credit Corp. v. Lam, 93 A.D.3d 713, 713–714, 939 N.Y.S.2d 869;Ayala v. Bassett, 57 A.D.3d 387, 389, 870 N.Y.S.2d 261). In addition, contrary to the contention of Wells Fargo and the reasoning of the court, CPLR 6501 has no relevance to th......
  • Martinez v. Goolcharran
    • United States
    • New York Supreme Court
    • July 20, 2021
    ... ... evening) ... prior to resorting to "nail and mail" delivery ... under CPLR §308(4). See Ayala v. Bassett, 57 ... A.D.3d 387, 870 N.Y.S.2d 261 (1st Dep't 2008) ... Consequently, the burden then shifted to Defendant to rebut ... ...
  • Bd. of Managers of 50 W. 127th St. Condo. v. Kidd
    • United States
    • New York Supreme Court — Appellate Division
    • February 7, 2019
    ...personal service over a period of time may satisfy the plaintiff's prima facie burden in some circumstances (see e.g. Ayala v. Bassett, 57 A.D.3d 387, 388, 870 N.Y.S.2d 261 [1st Dept. 2008] ), where, as in this case, it is evident that the defendant works during day time hours, a showing of......
  • 63 W. LLC v. Bicher
    • United States
    • New York Supreme Court
    • December 20, 2021
    ...Mgrs. of 50 W. 127th St. Condominium v. Kidd , 169 A.D.3d 432, 432, 94 N.Y.S.3d 27 [1st Dept. 2019], citing Ayala v. Bassett , 57 A.D.3d 387, 388, 870 N.Y.S.2d 261 [1st Dept. 2008] ; accord Brafman & Assocs., P.C. v. Balkany , 190 A.D.3d 453, 453, 139 N.Y.S.3d 199 [1st Dept. 2021].) But in ......
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