| Mastroianni v Rallye Glen Cove, LLC |
| 2009 NY Slip Op 01450 [59 AD3d 686] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Anthony Mastroianni, Respondent, v Rallye Glen Cove,LLC, Doing Business as Rallye Lexus, et al., Appellants. |
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In an action, inter alia, to recover damages for negligent repair of an automobile, thedefendants, Rallye Glen Cove, LLC, doing business as Rallye Lexus, and Rallye Glen Cove,Inc., doing business as Rallye Lexus, and Andrew Jones appeal from an order of the SupremeCourt, Nassau County (Mahon, J.), dated October 3, 2007, which, after a hearing, denied themotion of the defendants Rallye Glen Cove, LLC, doing business as Rallye Lexus, and RallyeGlen Cove, Inc., doing business as Rallye Lexus, pursuant to CPLR 3211 (a) (8) to dismiss thecomplaint insofar as asserted against them for lack of personal jurisdiction.
Ordered that the appeal by the defendant Andrew Jones is dismissed, without costs ordisbursements, as that defendant is not aggrieved by the order appealed from (see CPLR5511); 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 GlenCove, Inc., doing business as Rallye Lexus (hereinafter the defendants) moved pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against them, alleging that they were notproperly served with the summons and complaint. At a hearing to determine the validity ofservice of process, the plaintiff's process server testified that he properly served ChristianCharvet, an employee of the defendants, with a summons and complaint, and that Charvet wasidentified by the defendants' receptionist as a general manager. The defendants asserted thatCharvet was not served with the summons and complaint, and that even if he was, he was notauthorized to accept service on behalf of the [*2]defendants.
In reviewing a determination made by a hearing court, the power of the Appellate Division isas broad as that of the hearing court and it may render the determination it finds warranted by thefacts, taking into account that, in a close case, the hearing court had the advantage of seeing andhearing the witnesses (see Northern Westchester Professional Park Assoc. v Town ofBedford, 60 NY2d 492, 499 [1983]; Hall v Sinclaire, 35 AD3d 660 [2006]). Here, the hearing court'sdetermination is amply supported by the record and, accordingly, we decline to disturb itsfinding that the process server was more credible than Charvet (see Lattingtown Harbor Prop. OwnersAssn., Inc. v Agostino, 34 AD3d 536, 538 [2006]).
The hearing court properly found that the process server served Charvet with a summons andcomplaint and reasonably relied on the representation of the defendants' receptionist that Charvetwas the general manager. Accordingly, the hearing court properly determined that, objectivelyviewed, the service was calculated to give the defendants fair notice (see Fashion Page vZurich Ins. Co., 50 NY2d 265, 273 [1980]).
The defendants' request to deem their answer timely served, nunc pro tunc, is not properlybefore this Court, as the request was not made before the Supreme Court (see Zino v Joab Taxi, Inc., 20 AD3d521 [2005]). Fisher, J.P., Balkin, McCarthy and Leventhal, JJ., concur. [See 2007NY Slip Op 33253(U).]