| Samuel v Brooklyn Hosp. Ctr. |
| 2011 NY Slip Op 07622 [88 AD3d 979] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Henry Samuel, Respondent, v Brooklyn Hospital Center,Defendant, and Anders J. Cohen, D.O., Appellant. |
—[*1] Marius C. Wesser, Brooklyn, N.Y., for respondent.
In an action to recover damages for medical malpractice, the defendant Anders J. Cohen,D.O., appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated April 28,2010, which, after a hearing (Sunshine, J.H.O.) on the issue of the validity of service of process,denied his motion to dismiss the complaint insofar as asserted against him on the ground of lackof personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantAnders J. Cohen, D.O., to dismiss the complaint insofar as asserted against him on the ground oflack of personal jurisdiction is granted.
The plaintiff commenced this action against Brooklyn Hospital Center (hereinafter BHC) andAnders J. Cohen, D.O., to recover damages for medical malpractice. In September 2008 andOctober 2008, the plaintiff's process servers went to the BHC building located at 121 DeKalbAvenue in Brooklyn to serve the subject summons and complaint upon Cohen. In September2008, the summons and complaint were delivered to the supervisor of BHC's Health InformationManagement Department at 121 DeKalb Avenue. In October 2008, the summons and complaintwere delivered to an individual who worked in BHC's Risk Management Department, which alsowas located at 121 DeKalb Avenue. During the times of the attempted service, Cohen was not anemployee of BHC, but had privileges there, and maintained an office in a building located withinthe BHC campus. Cohen's office was located at 240 Willoughby Street, which is a separatebuilding from 121 DeKalb Avenue; however, the two buildings are connected via a series oftunnels and corridors.
After a hearing on the issue of the validity of service of process, the Supreme Courtdetermined that service had been properly effected upon Cohen. We reverse.
As relevant herein, CPLR 308 (2) permits personal service on a natural person "by deliveringthe summons within the state to a person of suitable age and discretion at the actual place ofbusiness" of the person to be served and, within 20 days thereafter, mailing a copy of the [*2]summons to the actual place of business in a specified manner(CPLR 308 [2]). CPLR 308 (2) requires strict compliance and the plaintiff has the burden ofproving, by a preponderance of the credible evidence, that service was properly made (seeKearney v Neurosurgeons of N.Y., 31 AD3d 390, 391 [2006]; McCray v Petrini, 212AD2d 676 [1995]). Under the circumstances of this case, the plaintiff failed to establish by apreponderance of the evidence that service was properly effected at Cohen's actual place ofbusiness (see Kearney v Neurosurgeons of N.Y., 31 AD3d at 391; West v Doctor'sHosp., 198 AD2d 92 [1993]; Glasser v Keller, 149 Misc 2d 875 [1991]). Mastro,J.P., Eng, Belen and Hall, JJ., concur.