Mastroianni v. Rallye Glen Cove, LLC

Citation59 A.D.3d 686,874 N.Y.S.2d 210,2009 NY Slip Op 01450
Decision Date24 February 2009
Docket Number2007-10634.
PartiesANTHONY MASTROIANNI, Respondent, v. RALLYE GLEN COVE, LLC, Doing Business as RALLYE LEXUS, et al., Appellants.
CourtNew York Supreme Court Appellate Division

Ordered that the appeal by the defendant Andrew Jones is dismissed, without costs or disbursements, as that defendant is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed on the appeal by the defendants Rallye Glen Cove, LLC, doing business as Rallye Lexus, and Rallye Glen Cove, Inc., doing business as Rallye Lexus, without costs or disbursements.

The defendants Rallye Glen Cove, LLC, doing business as Rallye Lexus, and Rallye Glen Cove, Inc., doing business as Rallye Lexus (hereinafter the defendants) moved pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against them, alleging that they were not properly served with the summons and complaint. At a hearing to determine the validity of service of process, the plaintiff's process server testified that he properly served Christian Charvet, an employee of the defendants, with a summons and complaint, and that Charvet was identified by the defendants' receptionist as a general manager. The defendants asserted that Charvet was not served with the summons and complaint, and that even if he was, he was not authorized to accept service on behalf of the defendants.

In reviewing a determination made by a hearing court, the power of the Appellate Division is as broad as that of the hearing court and it may render the determination it finds 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...

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5 cases
  • Prosolov v. PSRS Realty
    • United States
    • New York Supreme Court Appellate Division
    • 20 d3 Maio d3 2015
    ...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 ; Mastroianni v. Rallye Glen Cove, LLC, 59 A.D.3d 686, 687, 874 N.Y.S.2d 210 ). The documents submitted by the plaintiff, including the affidavits of service and the process server's logbook and spr......
  • Tarrytown v. Chacko
    • United States
    • New York Supreme Court Appellate Division
    • 12 d3 Março d3 2014
    ...492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;Bartow v. Lugo, 66 A.D.3d 936, 937, 887 N.Y.S.2d 678;Mastroianni v. Rallye Glen Cove, LLC, 59 A.D.3d 686, 687, 874 N.Y.S.2d 210;Hall v. Sinclaire, 35 A.D.3d 660, 826 N.Y.S.2d 706). The plaintiff's process server, who refreshed his recollection with......
  • Holubar v. Holubar
    • United States
    • New York Supreme Court Appellate Division
    • 9 d3 Novembro d3 2011
    ...799 N.Y.S.2d 124; see also May v. Hartsdale Manor Owners Corp., 73 A.D.3d 713, 900 N.Y.S.2d 359; Mastroianni v. Rallye Glen Cove, LLC, 59 A.D.3d 686, 687, 874 N.Y.S.2d 210). Accordingly, the Supreme Court erred in granting the defendant's[89 A.D.3d 803] cross motion to dismiss the complaint......
  • Wells Fargo Bank v. Burshstein
    • United States
    • New York Supreme Court Appellate Division
    • 29 d3 Maio d3 2019
    ...finding that the testimony of the process server was more credible than that of the defendant (see Mastroianni v. Rallye Glen Cove, LLC, 59 A.D.3d 686, 687, 874 N.Y.S.2d 210 ).The defendant's remaining contentions are without merit.Accordingly, we agree with the Supreme Court's determinatio......
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