| Georges v Dr. Claude Michel Mem. Med. Ctr. |
| 2010 NY Slip Op 06568 [76 AD3d 953] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Marie Georges, Appellant, v Dr. Claude Michel MemorialMedical Center et al., Defendants, and Steven Inker, Respondent. |
—[*1] Vaslas Lepowsky Hauss & Danke, LLP, Staten Island, N.Y. (Neil F. Schreffler of counsel),for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.),dated January 15, 2009, as, in effect, granted the cross motion of the defendant Steven Inker tovacate, pursuant to CPLR 5015 (a) (4), so much of a judgment of the same court (Kurtz, J.H.O.),entered May 23, 2008, as, upon his default in answering the complaint or appearing in the action,and after an inquest, was in favor of the plaintiff and against him in the principal sum of$500,000, and to compel the plaintiff to accept his untimely answer.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with costs, that branch of the motion of the defendant Steven Inker which was tovacate, pursuant to CPLR 5015 (a) (4), so much of the judgment as was in favor of the plaintiffand against him in the principal sum of $500,000 is denied, and that branch of the motion of thedefendant Steven Inker which was to compel the plaintiff to accept his untimely answer is deniedas academic.
CPLR 308 (2) authorizes service by delivery of the summons and complaint within the stateto a person of suitable age and discretion at the defendant's actual place of business. The plaintiffbears the ultimate burden of proving, by a preponderance of the evidence, that personaljurisdiction over the defendant was obtained by proper service of process (see Roberts v Anka, 45 AD3d 752,753 [2007]).
Here, an affidavit of service from the plaintiff's process server established, prima facie, thaton December 21, 2007, the defendant Steven Inker was properly served with the summons andcomplaint pursuant to CPLR 308 (2) at one of his actual places of business (cf. Roberts vAnka, 45 AD3d at 753). Inker's evidentiary submissions did not raise an issue of fact inconflict with that affidavit of service (cf. Dean v Sarner, 201 AD2d 770, 771 [1994]).Under these circumstances, the Supreme Court should have denied that branch of Inker's crossmotion which was to vacate so much [*2]of the default judgmentas was in favor of the plaintiff and against him (see CPLR 5015 [a] [4]).
The plaintiff's remaining contentions either are without merit or have been renderedacademic in light of our determination. Covello, J.P., Angiolillo, Eng and Leventhal, JJ., concur.