Mitchell v. Mendez
| Decision Date | 22 January 1985 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 484 N.Y.S.2d 98,107 A.D.2d 737 |
| Parties | William P. MITCHELL, Appellant, v. Alfonso MENDEZ, Respondent. (Action) William P. MITCHELL, Appellant, v. John J. SENKO, Jr., et al., Defendants, Alfonso Mendez, Respondent. (Action) |
| Court | New York Supreme Court — Appellate Division |
Miller & Steckler, Westbury (Peter D. Kolbrener and Faden & Goldmacher, Beth Goldmacher, Westbury, of counsel), for appellant.
Gervais, deCicco, McCorry, & Salkaln, Garden City (Margaret M. Herrmann, Garden City, of counsel), for respondent.
Before LAZER, J.P., and BRACKEN, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In two actions to recover damages for personal injuries, etc., plaintiff appeals from (1) an order of the Supreme Court, Nassau County, dated August 23, 1983, which granted respondent's motion to the extent of dismissing Action No. 1 and directing that a traverse hearing be held as to the validity of the service of the summons and complaint upon respondent in Action No. 2, and (2) an order of the same court, dated January 17, 1984, which, inter alia, denied plaintiff's motion to renew the prior motion and to strike respondent's first and second affirmative defenses in Action No. 2.
Order dated January 17, 1984, reversed, that branch of plaintiff's motion which sought leave to renew granted, and upon renewal, order dated August 23, 1983 modified by deleting the provision which directed that a traverse hearing be held, and substituting therefor a provision denying that branch of respondent's motion which sought dismissal of Action No. 2, original determination otherwise adhered to, and that branch of plaintiff's motion which sought to strike defendant's first and second affirmative defenses granted.
Appeal from order dated August 23, 1983 dismissed as academic in light of the determination of the appeal from the order dated January 17, 1984.
Plaintiff is awarded one bill of costs.
Special Term should have granted that branch of plaintiff's motion which sought renewal. Plaintiff had no opportunity in his first motion to respond to the contention respondent first raised in his reply affirmation that service of the summons and complaint in Action No. 2 was defective.
The court nevertheless granted respondent relief to the extent of ordering a traverse hearing. Plaintiff was entitled to present arguments in support of his position that service was valid and that no traverse hearing was required (Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 453 N.Y.S.2d 247).
Plaintiff was also entitled to an order striking respondent's first and second affirmative defenses. Plaintiff presented an affidavit of service made pursuant to subdivision 4 of CPLR 308. The affidavit stated that the process server had made attempts to serve respondent (or a person of suitable age and discretion thereat) at his residence on three different days at different...
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