Belofatto v. Marsen Realty Corp.
| Decision Date | 29 April 1970 |
| Citation | 62 Misc.2d 922,310 N.Y.S.2d 191 |
| Parties | Carmine BELOFATTO v. MARSEN REALTY CORP., Inc., Furman Wolfsen Corp. and Newmark Associates. |
| Court | New York City Court |
Schulman & Laifer, by Henry Schulman and Arnold Kleinick, for plaintiff.
Howard A. Kochendorfer, by Patrick J. Woods, New York City, for defendants.
After a hearing on the defendant's motion to dismiss the complaint on the grounds of improper service, I find that the service was legally sufficient and that the motion must be dismissed.
Factually, a very sharp issue was posed by the conflicting testimony of the process server and Frank Gilbert, 'the managing agent,' whose service is disputed.
I accept as fundamentally correct the testimony of the process server who said substantially the following. On June 24, 1969, he went to the offices of the defendants (interlocking corporations who occupy adjoining offices) where he stated his purpose to a lady who appears to have been a receptionist. She escorted him to an inner office in which he was introduced to a Mr. Gilbert, who was presented to him as someone qualified to accept process for the defendants. He then served Gilbert, who accepted the process, and confirmed his authority to do so.
Although Gilbert was a persuasive witness, the defendants' version simply does not explain how the process server happened to secure the name of someone who was an insurance broker servicing the defendants, and not an officer or employee. Nor does it begin to explain why the process server, if he were inclined to fabricate a service of process that never took place, would have plucked out of the air a name that could not possibly be associated with the defendants rather than the name of a listed officer. Finally, the defense version does not explain how the summonses came to the attention of their lawyer so promptly that counsel entered into a stipulation only one month after the disputed service.
The most reasonable inference, although by no means a certain one, is that the event occurred substantially as described by the process server, and that Gilbert forgot the episode, or someone in defendants' offices, with questionable purpose, used Gilbert's name and simulated authority to receive the process.
Since Gilbert was not in fact a 'managing agent,' or someone authorized to receive process for the defendants, a legal question of some difficulty is presented.
I am aware of the line of cases that might plausibly be presented as establishing the invalidity of the service here. However, close analysis of these cases indicates that they fall basically into one of two categories: (1) cases in which the very office to which the process server went was unlikely to have an officer of appropriate authority to receive process (See e.g., Isaf v. Pennsylvania R.R. Co. and Erie Lackawanna R.R. Co., 32 A.D.2d 578, 299 N.Y.S.2d 231 (3rd Dept. 1969)); or (2) cases in which the process server acted so carelessly that sustaining service would open the door to grave abuse. See e.g., McDonald v. Ames Supply Co., Inc., 22 N.Y.2d 111, 291 N.Y.S.2d 328, 238 N.E.2d 726 (1968).
Neither of these factual situations is present in this case. The instant case is quite similar to, and...
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Geller v. Mahsons Realty Corp.
...v. Bronx River Soundview Community Corp., 77 Misc.2d 275, 353 N.Y.S.2d 671 (Civ.Ct.-N.Y.Co.-1974, Blyn, J.); Belofatto v. Marsen Realty Corp., 62 Misc.2d 922, 310 N.Y.S.2d 191 (Civ.Ct.-N.Y.Co.-1970, Sandler, 2. (a) Summary Judgment In the interests of furthering justice and judicial motion ......
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Davidman v. Ortiz
...under circumstances bringing the question of process within the purview of the person to be served.' (See, Belofatto v. Marsen Realty Corp., 62 Misc.2d 922, 310 N.Y.S.2d 191 (1970).) The "trend away from the formalism of earlier generations which refused to countenance a mistake in service"......
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Regan v. Tally Ho Trucking Co. Inc.
...a petitioner from deceptive maneuvers designed to frustrate the process server, and defeat justice. (See Belofatto v. Marsen Realty Corp., 62 Misc.2d 922, 310 N.Y.S.2d 191). This court concludes that the process server acted reasonably and diligently in attempting to fulfill the statutory m......
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Cunningham v. Channer, LLC
...have validated service on unauthorized individuals so as to avoid inequitable results. See, e.g., Belofatto v. Marsen Realty Corp., 62 Misc. 2d 922, 310 N.Y.S.2d 191 (Civ. Ct. 1970). In those cases, the courts looked to whether the process server "acted reasonably in placing the summons wit......