De Luca v. Consolidated Freight Lines, Civ. 15217.
| Citation | 132 F. Supp. 863 |
| Decision Date | 01 July 1955 |
| Docket Number | Civ. 15217. |
| Parties | Louis DE LUCA, Plaintiff, v. CONSOLIDATED FREIGHT LINES and Eastern Motor Express, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Philip F. Di Costanzo, Brooklyn, N. Y., for plaintiff.
Zelby & Burstein, New York City, appearing specially solely for contesting service for defendants.
This is a motion to vacate service of summons and complaint.
By complaint, filed Feb. 7, 1955, plaintiff, a resident of New York, instituted this action against Consolidated Freight Lines, an Oregon corporation, and Eastern Motor Express, Inc., an Indiana corporation, to recover the sum of $15,000 for personal injuries.
The complaint alleges that plaintiff was injured while he was engaged "in the process of loading or unloading the defendants' motor vehicle (truck) aforementioned, while the same was backed up on Pier #39, Brooklyn, N. Y." (Italics supplied). Further, that the proximate cause of the injury was defendants' failure to provide plaintiff with a safe place to work.
Service on both defendants was made by the U. S. Marshal on March 14, 1955 by serving the summons and complaint on the Clerk of the Secretary of State pursuant to Section 52 of the Vehicle and Traffic Law of the State of New York, McK.Consol.Laws, c. 71.
Defendants argue:
(1) The procedural requirements of the statute were not complied with.
(2) The injuries did not arise out of the operation of a motor vehicle within the meaning of the statute.
Defendants' affidavit is purely factual. Neither side filed briefs. The attorney for the plaintiff is willing to rely upon the papers as submitted.
The affidavit states that the motor vehicle involved here was a tractor with an attached trailer; that Eastern owned the tractor and Consolidated the trailer, and that plaintiff was injured as a result of putting his foot through a hole in the floor of the trailer.
The assertion that service was not made upon defendants by registered mail pursuant to the mandate of the statute is without...
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Leszynski v. Russ
...with approval but on another point in the Maryland case of Hunt v. Tague, 1954, 205 Md. 369, 109 A.2d 80); DeLuca v. Consolidated Freight Lines, D.C.S.D.N.Y.1955, 132 F.Supp. 863; Acuff v. Service Welding & Machine Co., D.C.E.D.Tenn.1956, 141 F.Supp. 294. Counsel have not cited and I have n......
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Hayashida v. Second Judicial Dist. Court In and For Washoe County
...171 F.2d 199 (accident happened on U. S. Government land with egress and ingress only through guarded gates); De Luca v. Consolidated Freight Lines, D.C.N.Y., 132 F.Supp. 863 (injuries received while unloading a tractor-trailer stopped at a pier); and Mulligan v. Jersey Truck Renters, 196 M......
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...of the statute was found wanting. Brown v. Hertz Drivurself Stations, 1952, 203 Misc. 728, 116 N.Y.S.2d 412; De Luca v. Consolidated Freight Lines, D.C.E.D.N.Y.1955, 132 F.Supp. 863. The cases above do not give a single reason why the extension of the statute to include motor vehicle accide......
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Aranzullo v. Collins Packing Co.
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