DeLuca v. Ricci
| Decision Date | 22 June 1993 |
| Parties | Rose Marie DeLUCA, et al., Plaintiffs-Respondents, v. Clifford E. RICCI, et al., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ELLERIN, WALLACH, RUBIN and NARDELLI, JJ.
MEMORANDUM BY THE COURT.
Order, Supreme Court, Bronx County (Anita Florio, J.), entered June 15, 1992, which denied defendants' motion to dismiss the complaint, unanimously modified, on the law, to the extent of directing a traverse hearing, and otherwise affirmed, without costs.
Plaintiffs Rose Marie DeLuca and her husband Pasquale, residing at 3123 Sands Place in the Bronx, allege that on May 28, 1988 Mrs. DeLuca was injured on the premises by reason of the negligence of defendants Clifford E. Ricci and his wife Joan, the joint owners of the property. The question on appeal is whether the summons in this action was effectively served, the answer to which will determine the ultimate viability of the action in overcoming the pleaded defense of the three-year statute of limitations.
The formal service affidavits of Robert R. Gray, a licensed process server, recite that at 6:23 PM on March 27, 1991, he purportedly made personal service on defendant "Joan D. Ricci" at 3123 Sands Place, and that one minute earlier, at the same location, he made substituted service on defendant Clifford E. Ricci by leaving a copy of the summons and complaint with "JOAN D. RICCI--MOTHER" and mailing a copy to Clifford at the Sands Place address. In support of their motion to dismiss, defendants averred through counsel that actual delivery of process was made not to Joan, but instead to Estelle Ricci, the mother of Clifford. In virtually identical affidavits, Clifford and Joan stated that they do not reside at the Sands Place premises; that Estelle Ricci (Clifford's mother) does; that while they jointly own the Sands Place property, neither one "consider[s]" it to be "my actual place of business"; and that they never received service of the summons and complaint in any event.
In opposition to the dismissal motion, plaintiffs submitted a further affidavit from the process server, in pertinent part as follows:
That I went to 3123 Sands Place, Bronx County, New York for the purpose of serving one CLIFFORD RICCI and JOAN RICCI, defendants in this lawsuit. That upon ringing the doorbell at 3123 Sands Place, I inquired of the person who answered the door if, in fact, she was Joan Ricci and she indicated that she was and I served her.
I next asked her if Clifford Ricci was home and she said no and I inquired if he, in fact, resided there and she answered in the affirmative. With this I left her a copy of the Summons & Complaint and also mailed a copy to 3123 Sand Place the following day, March 28th. I did not receive the Summons & Complaint back in the mail.
We concur with the IAS court that on this record, defendants' motion was properly denied. Indeed, it would have been error, as a matter of law, to credit the conclusory and...
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...the hearsay rule has no application, for the statement is not offered as a testimonial assertion." (Emphasis added). DeLucca v. Ricci, 194 A.D.2d 457, 458 (1st Dept.1993)quoting Richardson on Evidence § 203 (Prince 10th ed.); see also, People v. Felder, 37 N.Y.2d 779 (1975) ; People v. Davi......
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...circumstances: Making the statement itself is at issue. People v. Davis , 58 N.Y.2d 1102, 462 N.Y.S.2d 816 (1983); DeLuca v. Ricci , 194 A.D.2d 457, 599 N.Y.S.2d 267 (1st Dept. 1993). Without regard to truthfulness, the statement is offered to impeach a witness’ credibility. See Letendr......
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...circumstances: Making the statement itself is at issue. People v. Davis , 58 N.Y.2d 1102, 462 N.Y.S.2d 816 (1983); DeLuca v. Ricci , 194 A.D.2d 457, 599 N.Y.S.2d 267 (1st Dept. 1993). Without regard to truthfulness, the statement is ofered to impeach a witness’ credibility. See Letendre......
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...circumstances: Making the statement itself is at issue. People v. Davis , 58 N.Y.2d 1102, 462 N.Y.S.2d 816 (1983); DeLuca v. Ricci , 194 A.D.2d 457, 599 N.Y.S.2d 267 (1st Dept. 1993). HEARSAY §5:20 NEW YORK OBJECTIONS 5-4 Without regard to truthfulness, the statement is ofered to impeac......