KnitsN'Tweeds, Inc. v. Jones New York
Decision Date | 05 January 1978 |
Docket Number | No. 77 C 2428.,77 C 2428. |
Citation | 442 F. Supp. 1129 |
Parties | KNITS `N' TWEEDS, INC., Plaintiff, v. JONES NEW YORK and Jones Apparel Group, Inc., Defendants. |
Court | U.S. District Court — Eastern District of New York |
Sol Horenstein, Babylon, N. Y., for plaintiff.
Becker, Ross & Stone, New York City (Howard Justvig, New York City, of counsel) for defendants.
The question before me is whether plaintiff's service of a summons and complaint upon defendant's receptionist on November 22, 1977, was adequate under N.Y.C.P.L.R. § 311(1) to commence an action in New York State Supreme Court. Defendants, who removed the action to this court from the state court, have now moved for an order dismissing the action under Fed. Rule 12(b)(5).
Affidavits submitted by defendant indicate that the summons and complaint was left with Deborah Burnaford, a receptionist in the New York sales office of defendant Jones Apparel Group, Inc. The affidavits state that Ms. Burnaford's duties are "ministerial" and conclude that she is not "An agent authorized by appointment or by law to receive service on behalf of defendant." This, of course, assumes the question in issue.
New York CPLR § 311(1) states:
Many of the New York courts which have considered the matter have upheld the validity of service upon a defendant corporation's receptionist. In Green v. Morningside Heights Housing Corp., 13 Misc.2d 124, 177 N.Y.S.2d 760 (Sup.Ct., N.Y.Cty.), aff'd 7 A.D.2d 708, 180 N.Y.S.2d 104 (1958), the court denied the defendant's motion to quash the service made upon its receptionist:
13 Misc.2d 125, 177 N.Y.S.2d 761.1
While I recognize that not all of the state courts follow the teaching of Green,2 I do so here, for I see no reason for a federal court to resolve a disputed question of state law in a way that would result in a dismissal of a case such as this, where there is no doubt that the defendant received actual notice promptly.
As an independent ground for denying defendant's motion to dismiss, I note that plaintiff served a copy of the summons and complaint on the Secretary of State of the State of New York on December 6, 1977, pursuant to N.Y.B.C.L. §...
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Welch v. American Airlines, Inc., Civil No. 95-2001 (DRD).
...France, 549 F.2d 1256 (9th Cir.1977); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.1957); Knits `N' Tweeds, Inc. v. Jones New York, 442 F.Supp. 1129 (E.D.N.Y. 1978); Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238 (S.D.N.Y.1975); Zousmer v. Canadian Pac. Air Lines, Ltd., 3......