Leis v. Finkelstein

• Decision Date: 27 June 1994
• Citation: 205 A.D.2d 738,613 N.Y.S.2d 699
• Parties: Anatoli LEIS, et al., Appellants, v. Leonid FINKELSTEIN, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 699

613 N.Y.S.2d 699

205 A.D.2d 738

Anatoli LEIS, et al., Appellants, v. Leonid FINKELSTEIN, et al., Respondents.

Supreme Court, Appellate Division, Second Department.

June 27, 1994.

Richard Kranis, P.C., Roslyn Heights, for appellants.

Kenneth Adler, Melville (Oliver Hull, of counsel), for respondents.

Before O'BRIEN, J.P., and RITTER, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Held, J.), dated September 24, 1992, which granted the defendants' motion to dismiss the complaint for lack of personal jurisdiction.

ORDERED that the order is affirmed, with costs.

Under the facts and circumstances of this case we perceive no basis upon which a New York court may exercise long-arm jurisdiction over the non-domiciliary defendants (CPLR 302[a]; see, McGowan v. Smith, 52 N.Y.2d 268, 437 N.Y.S.2d 643, 419 N.E.2d 321). Moreover, the plaintiffs' claim that the defendants were personally served, is based upon material which is dehors the record and may not be considered by this court (see, Carhuff v. Barnett's Bake Shop, 54 A.D.2d 969, 388 N.Y.S.2d 677; see also, Recovery Consultants v. Shih-Hsieh, 141 A.D.2d 272, 276, 534 N.Y.S.2d 374). "It is well established that review [by an appellate court] is limited to the record made before [the trial court] and the court is bound by the certified record on appeal. Matters contained in the brief, not properly presented by the record are not to be considered by an appellate court" (Mulligan v. Lackey, 33 A.D.2d 991, 992, 307 N.Y.S.2d 371; see also, Maestros v. Huntington Station Food Shop, 39 A.D.2d 582, 331 N.Y.S.2d 806).

Nor is there any merit to the plaintiffs' contention that the defendants' appearance in the action is tantamount to personal service of the summons since the defendants' answer clearly pleaded the affirmative defense of lack of personal jurisdiction (see, CPLR 302[c]; CPLR 3211[a][8]; Beris v. Miller, 128 A.D.2d 822, 513 N.Y.S.2d 744).

Accordingly, the Supreme Court properly dismissed the complaint based upon the lack of personal jurisdiction over the defendants.