Lefton v. Freedman

• Decision Date: 09 July 1990
• Parties: Nancy LEFTON, Appellant, v. Albert FREEDMAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 330

559 N.Y.S.2d 330

163 A.D.2d 360

Nancy LEFTON, Appellant, v. Albert FREEDMAN, Respondent.

Supreme Court, Appellate Division Second Department.

July 9, 1990.

Weicholz, Peters & Miller, Brooklyn (Jeffrey Peters, of counsel), for appellant.

Krall, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola (James J. Girvan, of counsel), for respondent.

Before BRACKEN, J.P., and LAWRENCE, KUNZEMAN, KOOPER and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a medical malpractice action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), entered March 6, 1989, which, after a hearing, denied her motion to strike the third affirmative defense asserted by the defendant and granted the defendant's cross motion to dismiss the complaint on the ground, inter alia, that the court lacked personal jurisdiction over him.

ORDERED that the order is reversed, on the law and the facts, with costs, the plaintiff's motion is granted, the defendant's cross motion is denied, and the third affirmative defense asserted by the defendant is stricken.

The plaintiff commenced this action against the defendant by personal service of a summons, which was apparently accompanied by a verified complaint. By his verified answer, the defendant asserted in his third affirmative defense that he was not properly served with a summons pursuant to CPLR 308. The plaintiff moved to strike the third affirmative defense, and the defendant cross-moved to dismiss the complaint on the ground, inter alia, that the court lacked personal jurisdiction over him.

After a hearing to determine whether the plaintiff had been properly served, the Supreme Court denied the plaintiff's motion and granted the defendant's cross motion on the ground that the defendant had not been personally served pursuant to CPLR 308(1).

The plaintiff argues that the order by the Supreme Court should be reversed because the testimony of her process server was more credible than that of the wife of the defendant. We agree.

The plaintiff's process server, Dennis Cook, testified that he had made several unsuccessful attempts to personally serve the defendant at his medical office and one unsuccessful attempt to serve the defendant at his home. However, on July 15, 1987, at about 8:22 P.M., Cook went to the defendant's home for a second time. As he approached the front door, Cook observed the defendant, who was seated at the table in the dining room, within 10 feet from Cook. Through the dining room window, Cook spoke to the defendant, who identified himself. When the defendant continued to eat, apparently refusing to come to the door, Cook rang the doorbell. The defendant's wife, Mrs. Freedman, came to the front door. Cook told her who he was, and that he had legal papers for the defendant. At this time the defendant told Cook to "give them [the papers] to my wife" and when Mrs. Freedman opened the door, Cook handed the papers to her. While Mrs. Freedman returned the papers to Cook, saying she could not accept them, Cook nevertheless handed them back to her and then he departed. Mrs. Freedman testified that she had no knowledge concerning any conversation between her husband and Cook on the evening in question. Rather, she claimed that when she went to the door, Cook asked her if the defendant was in. When she told Cook that the defendant was unavailable, she got no response from Cook except the question "Is Dr. Freedman in?" and then Cook shoved "something" through the louvers of the storm door, which had remained locked through this brief conversation. After Cook left, Mrs. Freedman immediately retrieved what had been put in the door, namely, the summons and verified complaint and gave them to the defendant, who had been sitting in the dining room. Despite Mrs. Freedman's testimony that a person walking up the front walk could not see into the dining room bay window "because it is off to the side", she conceded that assuming that the bay window was open (and she could not recall whether it was opened on the evening in question), a person sitting in the dining room would be able to have a conversation or hear anything that was said by someone on the walkway or anywhere in the front of the house if "they shout[ed]". At the conclusion of the hearing, the Supreme Court stated that it had found Mrs. Freedman's testimony more credible because Cook's hearing testimony contradicted his form affidavit of service, which indicated that the pleadings had been served on the defendant "by delivering a true copy * * * to [the] defendant * * * personally", and failed to include the additional facts that the papers were physically handed to Mrs. Freedman at the defendant's request.

While the findings of a hearing court concerning the resolution of issues of credibility should be accorded great respect because that court is in the best position to make such an assessment, nevertheless, contrary to our dissenting colleagues' contentions, we find that deference to the hearing court's determination is not warranted under the circumstances. We note that Dennis Cook was a "legally disinterested" witness (Rowlan v. Brooklyn Jewish Hosp., 100 A.D.2d 844, 845, 474 N.Y.S.2d 84), whereas Mrs. Freedman was the wife of the defendant, a party to the litigation. Further, the failure of Cook's form affidavit of service to indicate the precise factual situation surrounding the personal service upon the defendant does not serve as a reasonable basis upon which to discredit his testimony, particularly where Mrs. Freedman admitted that she had no knowledge concerning any conversation between the defendant and Cook. Moreover, the defendant's failure to testify at the hearing, although he was concededly present, permits an inference that his testimony would not have contradicted Cook's testimony and would not have supported his wife's testimony and warrants the drawing of the strongest inference against the defendant that the opposing evidence permits (see, Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 141 N.E.2d 529; Dowling v. Hastings, 211 N.Y. 199, 105 N.E. 194; Turner Press, Inc. v. Gould Associates, 76 A.D.2d 906, 429 N.Y.S.2d 239; Scola v. Morgan, 66 A.D.2d 228, 412 N.Y.S.2d 893; PJI 1:75). We therefore credit the process server's testimony and accept his account of the event (see, Kardanis v. Velis, 90 A.D.2d 727, 455 N.Y.S.2d 612).

"[U]nder CPLR 308 (subd 1) delivery of a summons may be accomplished by leaving it in the 'general vicinity' of a person to be served who 'resists' service (McDonald v. Ames Supply Co., 22 N.Y.2d 111, 115, 291 N.Y.S.2d 328, 238 N.E.2d 726). Thus, under that provision, if the person to be served interposes a door between himself and the process server, the latter may leave the summons outside the door provided the person to be served is made aware that he is doing so" (Bossuk v. Steinberg, 58 N.Y.2d 916, 918, 460 N.Y.S.2d 509, 447 N.E.2d 56). In this case, we find that the process server's delivery of the pleadings to Mrs. Freedman, the wife of the defendant, at the defendant's request, satisfied the requirements of service under CPLR 308(1) (see, Bradley v. Musacchio, 94 A.D.2d 783, 463 N.Y.S.2d 28). This case is distinguishable from Macchia v. Russo, 67 N.Y.2d 592, 505 N.Y.S.2d 591, 496 N.E.2d 680, wherein the process server delivered the papers to the defendant's son outside of the defendant's home, without in any way attempting to inform the defendant that the pleadings were being left with his son, and the defendant had not authorized the process server to do so.

Accordingly, the plaintiff's motion is granted, the defendant's cross motion is denied, and the third affirmative defense in the defendant's verified answer is stricken.

LAWRENCE, KOOPER and RUBIN, JJ., concur.

BRACKEN, J.P., dissents and votes to affirm the order, with the following memorandum, in which KUNZEMAN, J., concurs.

The Court of Appeals has twice stated that "[w]e see no reason to extend the clear and unambiguous meaning of CPLR 308 (subd 1)" (Macchia v. Russo, 67 N.Y.2d 592, 594, 505 N.Y.S.2d 591, 496 N.E.2d 680; Espy v. Giorlando, 56 N.Y.2d 640, 642, 450 N.Y.S.2d 786, 436 N.E.2d 193). The "clear and unambiguous" terms of CPLR 308(1) state that, in order to acquire personal jurisdiction and commence an action, the plaintiff's agent must deliver the summons directly to the defendant. My colleagues in the majority must acknowledge that no such delivery occurred in this case. In holding that valid service of process was nonetheless accomplished, it seems to me that the majority has done precisely that which the Court of Appeals has previously declared should not be done, i.e., it has extended the scope of CPLR 308(1) beyond the literal meaning of its terms. Moreover, in order to accomplish this result, the majority has gone so far as to make new findings of fact directly inconsistent with those made by the hearing court. For these reasons, I dissent.

Analytic clarity will best be served by noting, first, the important respects in which the findings of fact made by my colleagues differ from those made by the hearing court. The majority finds that the plaintiff's process server, who had arrived at the threshold of the defendant's home, was able to communicate with the defendant through an open window located next to the front door. The majority also finds that after Mary Freedman, the defendant's wife, had answered the doorbell, and after the process server had identified himself and the nature of his visit, the defendant (apparently communicating with the process server through the open window) said, "give them [the papers] to my wife". The majority further finds that the process server handed the summons and complaint to Mary Freedman, that Mrs. Freedman, reluctant to accept them, handed them back, and that the process server, having handed them to Mrs. Freedman yet again, departed.

The foregoing findings of fact may be...