Jhang v. Nassau Univ. Med. Ctr.

• Decision Date: 22 June 2016
• Citation: 35 N.Y.S.3d 360,140 A.D.3d 1018,2016 N.Y. Slip Op. 04910
• Parties: Eliot JHANG, appellant, v. NASSAU UNIVERSITY MEDICAL CENTER, respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 1018

35 N.Y.S.3d 360

2016 N.Y. Slip Op. 04910

Eliot JHANG, appellant,

v.NASSAU UNIVERSITY MEDICAL CENTER, respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 22, 2016.

Krentsel & Guzman, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant.

Gabriele & Marano, LLP, Garden City, N.Y. (Jennifer Larkin–Higgins of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Bruno, J.), entered June 10, 2015, which, upon an order of the same court (Bruno, J.) entered January 28, 2015, granting, after a hearing to determine the validity of service of process, that branch of the defendant's motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction, and an order of the same court (Brandveen, J.) entered March 19, 2015, denying the plaintiff's motion, inter alia, pursuant to CPLR 306–b for leave to extend the time within which to serve the summons and complaint by 120 days, is in favor of the defendant and against him dismissing the complaint.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by adding a provision thereto stating that the dismissal of the action shall be without prejudice to the re-serving of the summons and complaint within 120 days after service upon the plaintiff of a copy of this decision and order with notice of entry; as so modified, the judgment is affirmed, without costs or disbursements, that branch of the plaintiff's motion which was pursuant to CPLR 306–b for leave to extend the time within which to serve the summons and complaint by 120 days is granted, and the order entered March 19, 2015, is modified accordingly.

After the plaintiff commenced this action, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction. The Supreme Court granted that branch of the defendant's motion only to the extent of directing a hearing to determine the validity of service of process. After the hearing, the court determined that the defendant was not properly served with the summons and complaint pursuant to CPLR 311(a). Thereafter, the plaintiff promptly moved, inter alia, pursuant to CPLR 306–b for leave to extend the time within which to serve the summons and complaint by 120 days. In an order entered January 28, 2015, the court granted that branch of the defendant's motion which was to dismiss the complaint for lack of personal jurisdiction, and in an order entered March 19, 2015, the court denied the plaintiff's motion.

The plaintiff contends that the Supreme Court erred in determining that the defendant was not validly served with the summons and complaint pursuant to CPLR 311 such that the court did not have jurisdiction over the defendant. In reviewing a determination made by a hearing court, the power of this Court is as broad as that of the hearing court, and this Court may render its own determination as warranted by the facts, taking into account that, in a close case, the hearing court had the advantage of seeing and hearing the witnesses (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ; Prosolov v. PSRS Realty, 128 A.D.3d 934, 11 N.Y.S.3d 188 ; Doubletree Hotel Tarrytown v. Chacko, 115 A.D.3d 703, 704, 981 N.Y.S.2d 584 ; Bartow v. Lugo, 66 A.D.3d 936, 937, 887 N.Y.S.2d 678 ). While there was conflicting hearing testimony as to whether or not the summons and complaint were personally delivered to an agent authorized to accept service on behalf of the defendant at the defendant's business address, the credibility determinations of the hearing court are entitled to great deference on appeal and will not be disturbed unless they are against the weight of the credible evidence (see Shaw Funding, L.P. v. Samuel, 101 A.D.3d 1100, 955 N.Y.S.2d 896 ; King v. Gil, 69 A.D.3d 678, 891 N.Y.S.2d 655 ; Yasuda Bank & Trust Co. [U.S.A.] v. Oree, 233 A.D.2d 391, 650 N.Y.S.2d 590 ). Under the circumstances of this case, the court properly chose to discredit or disbelieve the testimony of the process server that he personally delivered the summons and complaint to the defendant's agent at the hospital where the subject incident occurred (see Washington Mut. Bank v. Holt, 113 A.D.3d 755, 757, 979 N.Y.S.2d 612 ; Billings v. Southside Hosp., 122 A.D.2d 101, 504 N.Y.S.2d 1019 ; Feeney...