DeZego v. Bruhn
| Decision Date | 27 February 1984 |
| Citation | 99 A.D.2d 823,472 N.Y.S.2d 414 |
| Parties | Barbara DeZEGO, et al., Respondents, v. Donald F. BRUHN, M.D., P.C., et al., Defendants, Albert Tydings, M.D., P.C., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Kelly, Rode, Kelly & Burke, Riverhead (Stephen P. Burke and Robert J. Walker, Riverhead, of counsel), for appellant.
McCoy & Agoglia, P.C., Mineola (Jerome Murphy and Kathleen M. Beckett, Mineola, of counsel), for respondents.
Before TITONE, J.P., and GIBBONS, BRACKEN and RUBIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for medical malpractice, defendant Albert Tydings, M.D., P.C., appeals from an order of the Supreme Court, Suffolk County, dated December 28, 1982, which granted plaintiffs' motion to strike the affirmative defense of lack of personal jurisdiction from its answer.
Order reversed, on the law, with costs, and motion denied.
By affidavit and at the traverse hearing, Albert Tydings, the principal of the corporate appellant, denied that he was personally served by a sheriff in Louisiana, claiming that he found the summons and complaint on the desk in his office. Allegedly, Tydings mailed the summons and complaint back to plaintiffs in New York, who forwarded it to their counsel, who in turn mailed it back to Tydings at his home in Louisiana.
Tydings' denial shifted the burden of proof to plaintiffs to substantiate their allegations of personal service (Empire Nat. Bank v. Judal Constr. of N.Y., 61 A.D.2d 789, 401 N.Y.S.2d 852). Plaintiffs chose to rely on the sheriff's affidavits. Those affidavits were devoid of factual detail, merely stating that Tydings was personally served on a certain date at a certain time. As such, the affidavits were insufficient to rebut Tydings' denial. We agree with Special Term's finding that plaintiffs failed to sustain their burden of proof as to personal service upon Tydings (cf. Smid v. Lombard, 83 A.D.2d 877, 442 N.Y.S.2d 104). We disagree, however, with Special Term's conclusion that process was delivered to one of appellant's employees and that such delivery, together with a subsequent mailing, satisfied the requirements of subdivision 2 of CPLR 308.
CPLR 313 requires that service outside the State must be affected "in the same manner as service is made within the state". Appellant is a professional corporation. Therefore, plaintiffs must show compliance with either subdivision 1 of CPLR 311 or section 306 of the Business Corporation Law (see ...
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...jurisdiction by a preponderance of the evidence at a hearing (Anton v. Amato, 101 A.D.2d 819, 475 N.Y.S.2d 298; De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823, 472 N.Y.S.2d 414 affd. 67 N.Y.2d 875, 501 N.Y.S.2d 801, 492 N.E.2d 1217 [1986] ). Based upon the evidence adduced at the hearing h......
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...nonconclusive and shifts the burden of proof to plaintiff to substantiate the allegation of personal service therein (De Zego v. Donald F. Bruhn, P.C., 99 A.D.2d 823 ; Old Colony Furniture Co. v. Fiegoli, 97 A.D.2d 790 ; Empire Nat. Bank v. Judal Constr., 61 A.D.2d 789 ). Under such circums......
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