Gordon v. Nemeroff Realty Corp.
| Decision Date | 04 April 1988 |
| Parties | Donna Collura GORDON, Respondent, v. NEMEROFF REALTY CORP., et al., Defendants, Service Merchandise Co., Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., of counsel), for appellant.
Johnson, Tannen, Brecher, Fishman, Feit & Heller, P.C., New York City (Jeffrey A. Manheimer, of counsel), for respondent.
Before THOMPSON, J.P., and BROWN, WEINSTEIN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant Service Merchandise Co., Inc., appeals from an order of the Supreme Court, Nassau County (Levitt, J.), entered May 4, 1987, which, after a hearing, granted the plaintiff's motion to strike its affirmative defense of lack of personal jurisdiction contained in its answer.
ORDERED that the order is affirmed, with costs.
By affidavit and by his testimony at the hearing, Steve Wells, the manager of the store owned by the appellant and in front of which the accident at issue occurred, denied that he was personally served with the summons and complaint in the instant action. He claimed that the assistant store manager gave the summons and complaint to him on September 12, 1980, the day following the alleged service, and he promptly contacted the appellant's district manager and then forwarded the papers to the appellant's legal department. In addition to arguing that the Supreme Court, Nassau County, erred in finding personal jurisdiction had been acquired over it, the appellant asserts that the affidavit of service was improperly admitted into evidence. Pursuant to both statutory and decisional law, where a process server dies after service and prior to a hearing as to whether service was properly effected, his affidavit of service shall be received as prima facie evidence of service provided it is not conclusory and devoid of sufficient detail (see, CPLR 4531; Smid v. Lombard, 83 A.D.2d 877, 442 N.Y.S.2d 104; cf., Kaszovitz v. Weiszman, 110 A.D.2d 117, 119, 493 N.Y.S.2d 335; Anton v. Amato, 101 A.D.2d 819, 820, 475 N.Y.S.2d 298). The appellant does not dispute that the process server died prior to the hearing. We find the affidavit was properly admitted into evidence because it contained sufficient factual detail and descriptive information to establish prima facie that personal service was made.
Furthermore, although the plaintiff bore the burden of...
To continue reading
Request your trial
-
Jones v. Nossoughi
...her testimony is supported by a fair interpretation of the record and thus should not be disturbed ( see, Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 526 N.Y.S.2d 595; Laurence v. Hillcrest Gen. Hospital--GHI Group Health, 119 A.D.2d 808, 501 N.Y.S.2d We have considered the defendant's......
-
Laurenzano v. Laurenzano
...factual detail and descriptive information to establish prima facie that personal service was made" (Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 493, 526 N.Y.S.2d 595). Although the plaintiff was unable to locate the process server, she established that she had exercised "due diligence......
-
Liriano v. Eveready Ins. Co.
...Corp. v. Auguste, 266 A.D.2d 330, 698 N.Y.S.2d 303; Deitsch v. Fischer, 246 A.D.2d 623, 667 N.Y.S.2d 314; Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 492–493, 526 N.Y.S.2d 595). The decision and order of this Court in a prior appeal in this case does not support a contrary conclusion (......
-
Frankel v. Schilling
...(see, Skyline Agency v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139, 502 N.Y.S.2d 479; see also, Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 493, 526 N.Y.S.2d 595). It is well settled, however, that where "there is a sworn denial of service by the defendant, the affidavit of service ......