| Bartow v Lugo |
| 2009 NY Slip Op 07780 [66 AD3d 936] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Scott Bartow et al., Appellants, v Edgar Lugo et al.,Respondents, et al., Defendant. |
—[*1] Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Jr., Peter James Johnson,James P. Tenney, and Joanne Filiberti of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderand judgment (one paper) of the Supreme Court, Richmond County (Minardo, J.), dated October16, 2008, which, after a hearing to determine the validity of service of process, granted thatbranch of the motion of the defendants Edgar Lugo and Minerva Lugo which was to dismiss thecomplaint insofar as asserted against them for lack of personal jurisdiction, and dismissed thecomplaint insofar as asserted against those defendants.
Ordered that the order and judgment is affirmed, with costs.
The defendants Edgar Lugo and Minerva Lugo (hereinafter the respondents) moved, interalia, to dismiss the complaint insofar as asserted against them on the ground that they were notproperly served with process. The process server's affidavits stated that service of process hadbeen effectuated upon each respondent, inter alia, by delivering copies of the summons andcomplaint to a female relative of suitable age and discretion living at the respondents' residence,who was identified as Rene Lugo. However, the respondents asserted that the only femalerelative who lived in their home did not match the description of the female relative provided inthe affidavits of service. At a hearing to determine the validity of service of process, the processserver testified with respect to the contents of the affidavits of service and his own record, butadmitted that he had no independent recollection of the service in question. The defendantMinerva Lugo testified that no legal papers were delivered to her home on the date in question,and that the only other female residing at her home on that date was her 11-year-old daughterAlyssa Lugo. Additionally, Alyssa Lugo testified that she had never seen the process serverbefore.[*2]
In reviewing a determination made by a hearing court,the power of the Appellate Division is as broad as that of the hearing court and it may render thedetermination it finds warranted by the facts, taking into account that, in a close case, the hearingcourt had the advantage of seeing and hearing the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Mastroianni v Rallye Glen Cove, LLC,59 AD3d 686, 687 [2009]). Here, the hearing court's determination that the respondentswere not properly served with process is amply supported by the record. Accordingly, theSupreme Court properly dismissed the complaint insofar as asserted against the respondents forlack of personal jurisdiction. Fisher, J.P., Florio, Angiolillo, Eng and Roman, JJ., concur.