Foy v. 1120 Ave. of Americas Associates

• Decision Date: 19 August 1996
• Citation: 223 A.D.2d 232,646 N.Y.S.2d 547
• Court: New York Supreme Court — Appellate Division
• Parties: John FOY, Respondent, v. 1120 AVENUE OF the AMERICAS ASSOCIATES, Appellant, et al., Defendant.

Page 547

646 N.Y.S.2d 547

223 A.D.2d 232

John FOY, Respondent, v. 1120 AVENUE OF the AMERICAS ASSOCIATES, Appellant, et al., Defendant.

Supreme Court, Appellate Division Second Department.

Aug. 19, 1996.

Ahmuty, Demers & McManus, Albertson (Frederick B. Simpson and Vincent S. Ambrosino, of counsel), for appellant.

Shreck, Wardi, Coiro & Wadow, New York City (Michael A. Chinitz, of counsel), for respondent.

Before BALLETTA, J.P., and SULLIVAN, COPERTINO and KRAUSMAN, JJ.

BALLETTA, Justice Presiding.

The question raised by this appeal is whether the 1991 amendments to CPLR 310 pertaining to service upon a partnership (see, L. 1991, ch. 338) represent a narrowing of the methods available to serve a partnership or a liberalization of service upon a partnership. We conclude that in this case substituted service upon one of the partners pursuant to CPLR 308(2) constituted service upon the partnership pursuant to CPLR 310(a).

On March 20, 1990, at approximately 7:30 A.M., the plaintiff, John Foy, allegedly slipped and fell in the lobby of the Hippodrome Building located at 1120 6th Avenue, Manhattan. The plaintiff commenced the instant negligence action against the Hippodrome Building and 1120 Avenue of the Americas Associates, the limited partnership which owned the Hippodrome Building (hereinafter the defendant), in January 1993.

The defendant moved to dismiss the complaint on the grounds of lack of jurisdiction and improper service. Although the Supreme Court, Kings County (Vaccaro, J.), by an order dated June 22, 1994, granted the defendant's motion, the court also granted the plaintiff permission to commence another action pursuant to CPLR 306-b(b) within 120 days of the date of the order. If the plaintiff failed to properly effectuate service upon the defendant within the 120-day period, then the action would be deemed dismissed with prejudice and the plaintiff would not be afforded any further opportunity to serve the defendant.

The plaintiff subsequently attempted to serve the new summons and complaint in early October 1994. In order to obtain jurisdiction over the defendant, the plaintiff's process server went to the Newark, New Jersey, office of one of the partners, Harold Gottesman, left the summons and complaint with Gottesman's administrative assistant and mailed copies to Gottesman's last known address. The partnership again moved to dismiss on the grounds of lack of jurisdiction and improper service. The plaintiff opposed the motion, arguing that proper service had been made upon one of the partners by leaving the papers with the administrative assistant who was a person of "suitable age and discretion" as defined by CPLR 308(2). After a hearing was conducted with respect to service, the Supreme Court (Ramirez, J.), by order dated March 20, 1995, denied the defendant's motion on the ground that service had been properly effectuated.

On appeal, the defendant argues that the purpose of the 1991 amendments to CPLR 310 (L. 1991, ch. 338, § 1) was to limit the available service options to those specifically mentioned in the newly amended CPLR 310, which governs service upon partnerships. Significantly, the defendant neither argues that the plaintiff's service failed to comply with the requirements of CPLR 308(2) nor challenges the factual assessment impliedly made by the Court in upholding service.

It is well settled that "[s]ervice is only effective * * * when it is made pursuant to the appropriate method authorized by the CPLR" (see, Markoff v. South Nassau Community Hosp., 61 N.Y.2d 283, 288, 473 N.Y.S.2d 766, 461 N.E.2d 1253; Feinstein v. Bergner, 48 N.Y.2d 234, 241, 422 N.Y.S.2d 356, 397 N.E.2d 1161). It is also well settled that in New York a court obtains jurisdiction over a partnership when, inter alia, "personal service is made on any partner, even if the other individual partners or partnership as an entity would not otherwise be subject to jurisdiction in New York" (1 Weinstein-Korn-Miller, N.Y. Civil Practice, p 310.01; Hayes v. Apples & Bells, 213 A.D.2d 1000, 624 N.Y.S.2d 490; Brown v. Sagamore Hotel, 184 A.D.2d 47, 590 N.Y.S.2d 934). The threshold question here is precisely what the appropriate method authorized by the CPLR is with respect to personal service upon an individual partner where the objective is to acquire jurisdiction over the partnership.

Prior to 1991, CPLR 310 provided simply that:

"Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them".

In interpreting CPLR 310 as it existed before the 1991 amendments, this court had construed the phrase "personally serving" as incorporating the substituted "leave and mail" service method set forth in CPLR 308(2) (Marton Assocs. v. Vitale, 172 A.D.2d 501, 568 N.Y.S.2d 119; Searing v. Anand, 127 A.D.2d 582, 511 N.Y.S.2d 382; Hickey v. Naruth Realty Corp., 71 A.D.2d 668, 419 N.Y.S.2d 12; see also, 1 Weinstein-Korn-Miller, N.Y. Civ Prac p 310.02).

CPLR 308, entitled "Personal Service upon a Natural Person" states, in part, that:

"Personal service upon a natural person shall be made by any of the following methods:

1. by delivering the summons within the state to the person to be served; or

2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business * * * and by * * * mailing the summons to the person to be served at his or her last known residence".

In 1991, the Legislature substantially reworked CPLR 310 (L. 1991, ch. 338, § 1), so that it now reads as follows:

"Personal Service upon a Partnership

(a) Personal service upon persons conducting a business as a partnership may be made by personally serving the summons upon any or one of them.

(b) Personal service upon said partnership may also be made within the state by delivering the summons to the managing or general agent of the partnership or the person in charge of the office of the partnership within the state at such office and by either mailing the summons to the partner thereof intended to be served by first class mail to his last known residence or to the place of business of the partnership.

* * * * * *

(c) Where service under subdivisions (a) and (b) of this section cannot be made with due diligence, it may be made by affixing a copy of the summons to the door of the actual place of business of the partnership within the state and by either mailing the summons by first class mail to the partner intended to be so served to such person to his last known residence or to said person at the office of said partnership within the state. Proof of such service shall be filed within 20 days thereafter with the clerk of the court designated in the summons; service shall be complete ten days after filing.

(d) Personal service on such partnership may also be made by delivering the summons to any other agent or employee of the partnership authorized by appointment to receive service; or to any other person designated by the partnership to receive process in writing, filed in the office of the clerk of the county wherein such partnership is located.

(e) If service is impracticable under subdivisions (a), (b) and (c) of this section, it may be made in such manner as the court, upon motion without notice directs".

The amendment was prompted by the belief that it was unduly difficult to serve a partnership under prior law (see, e.g., Cooney v. East Nassau Med. Group, 136 A.D.2d 392, 528 N.Y.S.2d 364 [service upon executive secretary of partnership without service upon any partner was ineffective to bring partnership within court's jurisdiction]; see also, Lawrence v. Ruskin, 186 A.D.2d 485, 589 N.Y.S.2d 38; Basaranlar v. Pelham Bay Gen. Hosp., 133 A.D.2d 241, 519 N.Y.S.2d 40; Italian Colony Rest. v. Wershals, 45 A.D.2d 841, 358 N.Y.S.2d 448). The supporting memorandum offered by the law's principal sponsors, Assemblyman Ivan Lafayette and Senator Dale Volker, explained the purpose and intent of the new law:

Purpose:

To provide for additional means, including substituted service, of personal service of the summons on a partnership.

Summary of Provisions:

The existing paragraph is to be identified as a subdivision 1(a) and the requirement that the partner be served within the state is deleted since this section must be read in conjunction with CPLR 313.

The additions to the existing Section provide two means of substituted service, modeled on CPLR 308, and permit service on any authorized agent or employee or a person so authorized in an instrument filed in the county clerks office. Finally, as with CPLR 308 the court is authorized to enter an order fashioning the mode of service.

Justification:

Present law makes it very difficult to serve the partnership itself and is misleading since it states service must be made within the state on the partner. This bill would treat a partnership as a business entity composed of more than its partners and permit service in some respects in the manner in which a corporation is served. There is no good reason why a managing agent, other authorized employee, or person in charge of the partnership office should not receive service. There may be instances where none of the partners are available for service in the state. Moreover, the court should have the power to fashion the means and manner of service (Mem of Dale M. Volker, Member of the Senate and Ivan Lafayette, Member of the Assembly; Bill Jacket, L. 1991, ch. 338).

In a letter authored by cosponsor Assemblyman Ivan Lafayette, it was reiterated that, "[t]his legislation provides alternative methods for personal service on a partnership * * * [which] are consistent with the court tested provisions of CPLR 308" (Letter of Ivan Lafayette, dated July 1, 1991, Bill Jacket, L. 1991, ch. 388).

The defendant contends that in view of the 1991 amendments, CPLR 310(a) and the phrase "personally serving" should now be construed to...