Jacobs v. Zurich Ins. Co.

• Decision Date: 08 June 1976
• Citation: 384 N.Y.S.2d 452,53 A.D.2d 524
• Parties: Robert JACOBS, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 452

384 N.Y.S.2d 452

53 A.D.2d 524

Robert JACOBS, Plaintiff-Appellant, v. ZURICH INSURANCE COMPANY, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

June 8, 1976.

S. Frank, New York City, for plaintiff-appellant.

I. J. Greenhill, New York City, Lawrence F. Landgraff, New York City, of counsel, for defendant-respondent.

Before MARKEWICH, J.P., and KUPFERMAN, LUPIANO, SILVERMAN and LYNCH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered December 11, 1975, which confirmed the report of the Special Referee and granted the defendant's motion to dismiss the complaint for lack of jurisdiction, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Defendant moved for an order pursuant to CPLR 3211(a)(8) dismissing the complaint on the ground that the court does not have jurisdiction of the person of the defendant. The motion was held in abeyance and the factual issue of whether proper service was effected upon defendant was referred to a Special Referee to hear and report.

Defense counsel's endeavor to obtain an adjournment of the hearing before the Special Referee scheduled for May 2, 1975 because of actual engagement elsewhere, opposed by plaintiff's counsel, was unsuccessful. As a consequence, defense counsel rearranged his affairs so as to be able to proceed at said hearing. The sole proof submitted by plaintiff at the hearing was the affirmation of the process server, an attorney, dated August 27, 1974, wherein he averred that he served the summons on the corporate defendant by personally serving same on a Mr. Forward, that he 'INTENTIONALLY and PURPOSEFULLY asked Mr. Forward if he was authorized to accept service of a summons' and upon receiving an affirmative response, he then served the summons on Mr. Forward. Since the process server did not testify at the hearing, his affidavit of service is admissible in evidence only insofar as it conforms to the requirements of CPLR 306, which pertinently provides, Inter alia, that proof of service in the form of an affidavit 'shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner.' A receptionist employed by defendant testified that Mr. Forward, who is no longer an employee of defendant, was the Claims Manager for defendant and that for the purpose of receiving summonses, process servers were directed to other people. The receptionist further declared that if no one was available, process servers, according to her belief, were sent to Mr. Forward. However, on redirect, she stated that she had no knowledge as to this practice. No witnesses were produced by plaintiff.

As aptly noted in Commissioners of the State Insurance Fund v. Singer Sewing Machine Company, 281 App.Div. 867, 868, 119 N.Y.S.2d 802, 804 (1st Dept., 1953): 'The fact that the corporation ultimately received the summons did not . . . validate the service thereof. (Joseph v. Kansas City, M. & O. Ry., 180 App.Div. 313, 315, 167 N.Y.S. 273, 274; Beck v. North Packing & Provision Co., 159 App.Div. 418, 420, 144 N.Y.S. 602, 603). It is equally well wettled that the validity of service by plaintiff cannot be made to turn upon any statement made by the person who actually received the summons, at the time he was served. (Coler v. Pittsburgh Bridge Co., 146 N.Y. 281, 283, 40 N.E. 779, 780; Loeb v. Star & Herald Co., 187 App.Div. 175, 178, 175 N.Y.S. 412, 414.)' The court did not obtain jurisdiction of the defendant by the service of process upon Forward unless he was within the meaning of CPLR 311(1) 'an officer, director, managing or general agent, or cashier or assistant cashier or . . . any other agent authorized by appointment or by law to receive service.' 'The well-established rule is that a 'managing agent' is 'some person invested by the corporation with general powers involving the exercise of judgment and discretion, as distinguished from an ordinary agent or attorney, who acts in an inferior capacity and under the direction and control of a superior authority, both in regard to the extent of his duty and the manner of executing it.' (Taylor v. Grande State Provident Assn., 136 N.Y. 343, 346, 32 N.E. 992; see, also, Barrett v. American Tel. & Tel. Co., 138 N.Y. 491, 34 N.E. 289; Holzer v. Dodge Bros., 233 N.Y. 216, 135 N.E. 268; Callan v. Lillybelle, Ltd., 20 A.D.2d 877, 248 N.Y.S.2d 530, app. dsmd. 16 N.Y.2d 1074, 266 N.Y.S.2d 393, 213 N.E.2d 687' (Isaf v. Pennsylvania R.R. Company, 32 A.D.2d 578, 579, 299 N.Y.S.2d 231 (3rd Dept., 1969)). In McDonald v. Ames Supply Co., 22 N.Y.2d 111, 114--115, 291 N.Y.S.2d 328, 331, 238 N.E.2d 726, 728 (1968), Chief Judge, then Judge Breitel, succinctly observed:

'Numerous authorities hold that personal delivery of a summons to the wrong person does not constitute valid personal service even though the summons shortly comes into the possession of the party to be served (citations). A contrary rule would negate the statutory procedure for setting aside a defectively served summons, since the motion itself is usually evidence that the summons has been received (citations). Contrary to (third-party plaintiff's) argument, it has been held that redelivery of a summons by the person to whom delivery was wrongly made does not constitute personal 'delivery' to the ultimate proper recipient (citations).'

The burden of proving jurisdiction is upon the party asserting it and when challenged on jurisdiction, such party must sustain that burden by preponderating proof (Saratoga Racing Assn. v. Moss, 26 A.D.2d 486, 490, 275 N.Y.S.2d 888, 892 (3rd Dept., 1966), Aff'd, 20 N.Y.2d 733, 283 N.Y.S.2d 55, 229 N.E.2d 620 (1967)). Patently, on this record plaintiff failed to sustain his burden of proof.

All concur, except KUPFERMAN and SILVERMAN, JJ., who dissent in the following memorandum by SILVERMAN, J.:

SILVERMAN, Justice (dissenting):

I would reverse the order below and deny defendant's motion to dismiss the complaint for lack of Personam jurisdiction.

In general I think justice is not served by dismissal for irregularities in service of process where the defendant is subject to service within the state, a good faith effort is made to effect service, the summons is delivered to a responsible employee of defendant who however does not otherwise qualify as a 'managing agent' of defendant, and the proper officer or attorney of the defendant promptly receives the process intended for the defendant. In such cases, I think the presumption should be in favor of applying CPLR § 2001:

'At any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.'

In such circumstances the defect in service should be held to be 'an irregularity which may and should be disregarded.' Matter of Knickerbocker Ins. Co. (Gilbert), 28 N.Y.2d 57, 65, 320 N.Y.S.2d 12, 18, 268 N.E.2d 758, 762 (1971).

In the...