Braun v. St. Vincent's Hospital and Medical Center

• Decision Date: 19 April 1982
• Citation: 87 A.D.2d 857,449 N.Y.S.2d 291
• Parties: Sara BRAUN et al., Respondents, v. ST. VINCENT'S HOSPITAL AND MEDICAL CENTER et al., Defendants, and Lawrence Zingesser, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 291

449 N.Y.S.2d 291

87 A.D.2d 857

Sara BRAUN et al., Respondents, v.ST. VINCENT'S HOSPITAL AND MEDICAL CENTER et al., Defendants and Lawrence Zingesser, Appellant.

Supreme Court, Appellate Division Second Department.

April 19, 1982.

Cabell, Kennedy & French, New York City(Deborah F. Peters and John V. Henry, New York City, of counsel), for appellant.

Bauman, Greene, Sims & Kunkis, P. C., New York City(Bert Bauman, New York City, of counsel), for respondents.

Before MANGANO, J. P., and GULOTTA, THOMPSON and BROWN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action, defendant Zingesser appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(ARONIN, J.), dated April 16, 1981, as, after a hearing, granted that portion of plaintiffs' motion which sought to strike his first affirmative defense (lack of personal jurisdiction) and denied that portion of his cross motion which sought to dismiss the complaint on the same jurisdictional ground.

Order reversed insofar as appealed from, on the law, without costs or disbursements, plaintiffs' motion is denied to the extent that it seeks to strike defendant Zingesser's first affirmative defense, said defendant's cross motion is granted to the extent that it seeks dismissal of the complaint for lack of personal jurisdiction, and the action is severed and the complaint dismissed as to defendant Zingesser.

On April 18, 1980, at approximately 3:15 P.M., plaintiffs' process server arrived at defendantDr. Lawrence Zingesser's apartment building for the purpose of serving the summons and complaint in this action.There was a doorman on duty in the lobby who did not permit the process server access beyond that point.The doorman rang Dr. Zingesser's bell and informed the process server that there was no answer, but advised him that he could accept delivery of the papers.The summons and complaint were left with the doorman, who signed a receipt.Copies were then mailed to the doctor at his apartment.

The doorman had been employed in his position at Dr. Zingesser's building for seven years, and had known the doctor as a tenant for four years.His regular duties included receiving packages and parcels for tenants, which he had frequently done for Dr. Zingesser.Nevertheless, the doorman had never received instructions from the doctor to accept service of process on his behalf.

CPLR 308(subd. 2) authorizes personal service of process on a natural person "by delivering the summons within the state to a person of suitable age and discretion at the actual...