| Matter of DeMeo v City of Albany |
| 2009 NY Slip Op 04342 [63 AD3d 1272] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Derek DeMeo, Respondent, v City of Albany etal., Respondents, and Phlip'N Spill, Inc., Doing Business as The Bayou CafÉ,Appellant. |
—[*1] Luibrand Law Firm, P.L.L.C., Latham (Kevin A. Luibrand of counsel), for Derek DeMeo,respondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Connolly, J.), entered July 8,2008 in Albany County, which, in a proceeding pursuant to CPLR 3102 (c), among other things,denied the cross motion of respondent Phlip'N Spill, Inc. to vacate a prior order of the court.
In December 2006, petitioner was allegedly injured in a assault that was purportedlycaptured on various video cameras in the area, including those owned and operated byrespondent Phlip'N Spill, Inc. (hereinafter respondent). In an effort to preserve the recordings,petitioner commenced this proceeding by order to show cause and petition against respondentand the other video camera owners. Thereafter, Supreme Court ordered respondent and theothers to preserve the video recordings for the dates in question, file copies with the court andprovide copies to petitioner's counsel. After respondent failed to comply with the order,petitioner moved to hold it in contempt. Respondent cross-moved to vacate said order, arguing,among other things, that personal jurisdiction over it was never obtained because process had notbeen properly served. After a traverse hearing, Supreme Court found that jurisdiction had beenproperly obtained and scheduled a hearing on the contempt motion. In addition, because [*2]petitioner had incorrectly named respondent in the captions of thepetition and order to show cause, Supreme Court amended the captions to reflect respondent'sproper corporate name. Respondent now appeals.
Deferring to Supreme Court's credibility assessments of the witnesses (see Mastroianni v Rallye Glen Cove,LLC, 59 AD3d 686, 687 [2009]), we find the determination that process was properlyserved to be supported by a preponderance of the evidence (see Bankers Trust Co. of Cal. vTsoukas, 303 AD2d 343, 344 [2003]). Petitioner's process server testified at the hearing thathe went to respondent's place of business and served Ronald Lanzetta, an employee ofrespondent, with the order to show cause and petition. Respondent contends that Lanzetta wasnot authorized to accept service of process on its behalf. However, according to the processserver, Lanzetta was identified by another employee as the "person in charge" and Lanzettahimself claimed to be the manager. Although the process server did not specifically ask Lanzettaif he was authorized to accept service of process, he did tell Lanzetta that he had "legal papers"and Lanzetta agreed to give them to respondent's owner.
On this record, it cannot be said that it was unreasonable for the process server to rely on theidentification of Lanzetta as a proper person to accept service (see Von Thaden v Groves &Sons Co., 97 AD2d 677, 677 [1983]). Accordingly, we find that the service was made in amanner which, objectively viewed, was calculated to give respondent "fair notice" (FashionPage v Zurich Ins. Co., 50 NY2d 265, 272 [1980]; see Mastroianni v Rallye Glen Cove,LLC, 59 AD3d at 687). Further, considering that the service of process was proper, andthere is no evidence that respondent was substantially prejudiced, the court did not err inamending the caption (see CPLR 305 [c]; Benware v Schoenborn, 198 AD2d710, 712 [1993]).
In light of the foregoing, it is unnecessary to address petitioner's contention that he wasentitled to an adverse inference based on respondent's decision at the hearing to not call certainindividuals as witnesses.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.