| Segarra v Evans |
| 2008 NY Slip Op 01325 [48 AD3d 543] |
| February 13, 2008 |
| Appellate Division, Second Department |
| Hiram Segarra et al., Respondents, v Michael Evans et al.,Appellants. |
—[*1] Robert D. Rosen (Alexander J. Wulwick, New York, N.Y., of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Kings County (Schmidt, J.), dated January 18, 2007, which denied theirmotion, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint on the ground of lackof personal jurisdiction.
Ordered that the order is reversed, on the law and the facts, with costs, and the matter isremitted to the Supreme Court, Kings County, for a hearing on the issue of whether properservice of process was made upon the defendants in accordance with the service and filingrequirements of Vehicle and Traffic Law § 253 (2), and thereafter for a new determinationof the defendants' motion.
The Supreme Court summarily concluded that the defendants had been properly served withprocess in accordance with the service and filing requirements of Vehicle and Traffic Law§ 253 (2) and denied their motion, in effect, pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint. Under the circumstances of this case, considering the affidavits of service, theunclaimed certified mailing envelopes, and the certificates of ordinary mailing, before the motioncan be decided, a hearing is necessary in light of the defendants' sworn denials of receipt ofprocess, in order to determine whether there was compliance with the service and filingrequirements of the statute (see Balancio v Santorelli, 267 AD2d 189 [1999];Jean-Laurent v Nicholas, 182 AD2d 805 [1992]). Mastro, J.P., Santucci, Balkin andDickerson, JJ., concur.