Hinds v. 2461 Realty Corp.
| Decision Date | 29 January 1991 |
| Citation | 564 N.Y.S.2d 763,169 A.D.2d 629 |
| Parties | Norman HINDS and Sheridan Hinds, Plaintiffs-Respondents, v. 2461 REALTY CORP. and Parkoff Management, Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Before KUPFERMAN, J.P., and ROSS, ROSENBERGER, ASCH and WALLACH, JJ.
Order of Supreme Court, New York County (David B. Saxe, J.) entered on or about October 27, 1989 which denied defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction over the defendants and pursuant to CPLR 3215(c) for dismissal of the complaint as abandoned, is unanimously modified, on the law, on the facts, and in the exercise of discretion, insofar as to hold the determination of the motion to dismiss the complaint pursuant to CPLR 3211(a)(8) in abeyance, pending a hearing on the issue of whether service of process on the defendants complied with CPLR 308(2), and the matter is remanded to the IAS Court for such a hearing and disposition and the order is otherwise affirmed, without costs.
Plaintiffs commenced this action to recover for injuries sustained by plaintiff Norman Hinds as a result of an allegedly defective and unsafe stairway on the premises located at 2461 Amsterdam Avenue in Manhattan. The defendants, who did not appear or interpose an answer to the complaint, moved for dismissal in response to a letter dated August 10, 1988 in which plaintiffs' counsel notified defendants' insurance carrier, Liberty Mutual Insurance Co., that its insured had apparently defaulted in the action.
In support of their motion to dismiss pursuant to CPLR 3211(a)(8) defendants submitted an affirmation by counsel in which counsel states that on July 21, 1987 a summons and complaint was left with the receptionist at Parkoff Management--an individual not designated to accept service for the entity. Counsel states further that the affidavit of service indicated that service was intended for "2461 Realty Corp.". According to counsel for the defendants no such entity exists since 2461 Amsterdam Co. has always been a partnership. Thus counsel contended that based on the facts that service was intended for a nonexistent entity and that no partner of 2461 Amsterdam Co. was served, service on the partnership was not effected pursuant to CPLR 301. Counsel also states that Parkoff Management is a sole proprietorship, and that since Richard Parkoff, the sole proprietor, was not served, service was not made on that entity either. The affidavits of Richard Parkoff and Cecile Crompton, the office administrator for Parkoff Management, were also submitted in support of the motion to dismiss. Ms. Crompton's affidavit alleges that one copy of a summons and complaint was left with the receptionist for Parkoff Management on July 21, 1987. Ms. Crompton stated that she did not remember who the receptionist was and that no summons and complaint was received by mail at the offices of Parkoff Management. Mr. Parkoff's affidavit repeated the statements made by Ms. Crompton, and added that he did not receive service of a summons and complaint at either his home or office.
Attached to the defendant's motion papers is the affidavit of service completed by Kenneth Anderson. Therein Mr. Anderson recites that he served defendant "2461 Realty c/o Parkoff Management" by delivering a copy of the summons and complaint to C. Crompton, the secretary of 2461 Realty Corp. at 98 Cuttermil Road, Great Neck, New York. The affidavit contains a description of the individual served; however, the appropriate boxes indicating that a copy of the summons and complaint were mailed to the defendants at their last known address are not filled out.
In opposition to the defendants' motion to dismiss for lack of personal jurisdiction, the plaintiffs also submitted copies of two affidavits of service signed by Kenneth Anderson. In one Mr. Anderson attests to service of a summons and complaint on "2461 Realty Corp. c/o Parkoff...
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