Vito M. Fosella Builders & General Contractors, Inc. v. Silver

• Decision Date: 03 October 1994
• Citation: 617 N.Y.S.2d 59,208 A.D.2d 525
• Court: New York Supreme Court — Appellate Division
• Parties: VITO M. FOSELLA BUILDERS & GENERAL CONTRACTORS, INC., Respondent, v. Murray SILVER, et al., Appellants.

Page 59

617 N.Y.S.2d 59

208 A.D.2d 525

VITO M. FOSELLA BUILDERS & GENERAL CONTRACTORS, INC., Respondent, v. Murray SILVER, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Oct. 3, 1994.

Heller, Horowitz & Feit, P.C., New York City (Eli Feit and David I. Lobel, of counsel), for appellants.

Peter B. Ackerman, White Plains, for respondent.

Before THOMPSON, J.P., and SULLIVAN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for work, labor, and services performed, the defendants appeal from (1) so much of an order of the Supreme Court, Westchester County (Rosato, J.), dated March 9, 1993, as denied the branch of their motion which was to dismiss the complaint for failure to state a cause of action, and (2) an order of the Supreme Court, Westchester County (Coppola, J.), dated November 3, 1993, which, after a hearing to determine whether service of process had been properly effectuated, denied the branch of the defendants' motion which was to dismiss the complaint for failure to obtain personal jurisdiction over the defendants.

ORDERED that the order dated March 9, 1993, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated November 3, 1993, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The defendants contend that the service of process made pursuant to CPLR 308(2) was not proper because the required mailing, which was made on June 1, 1992 was not made within the requisite 20 days after service upon the defendants' doorman. The defendants contend that they returned to New York on May 8, 1992, that their arrival in New York was undisputed and supported by the defendants' airline tickets, which were admitted into evidence at the hearing to determine whether service of process had been properly effectuated, and that the defendants found the summons and complaint in their mailbox on May 8, 1992. The defendants further argue that the notation on the affidavit of service, "11st day of May", indicated that the doorman was served on May 1st and not on May 11th, as argued by the plaintiff. Therefore, the defendants contend that the requisite mailing was not effectuated within 20 days of service, and service was therefore not proper.

On the other hand, the process server testified at the hearing that he served the doorman on May 11, 1992, and that when he signed the affidavit of service he did not notice the typographical error indicating "11st day of May".

It is well established that the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made (see, Frankel v. Schilling, 149 A.D.2d 657, 540 N.Y.S.2d 469). The hearing court was presented with a question of credibility, which the court resolved in favor of the plaintiff, finding that process was served on the defendants' doorman on May 11, 1992. Matters of credibility are best determined by the hearing court, which had the opportunity to observe the witnesses (see, Billings v. Southside Hosp., 122 A.D.2d 101, 504 N.Y.S.2d 1019; Altman v. Wallach, 104 A.D.2d 391, 478 N.Y.S.2d 718). The hearing court's determination is entitled to great weight and should not be disturbed if supported by a fair interpretation of the evidence (see, Nagib v. Tolette-Velcek, 133 A.D.2d 72, 518 N.Y.S.2d 417; Occhiuzzi v. Occhiuzzi, 108 A.D.2d 799, 485 N.Y.S.2d 125). We find that the hearing court's determination should not be disturbed.

We also find that the branch of the...