| Rosario v NES Med. Servs. of N.Y., P.C. |
| 2013 NY Slip Op 02388 [105 AD3d 831] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Ana Rosario, Respondent, v NES Medical Servicesof New York, P.C., et al., Appellants, et al., Defendants. |
—[*1] Samuels & Associates, P.C., Rosedale, N.Y. (Violet E. Samuels of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantsNES Medical Services of New York, P.C., Bonnie Simmons, Tatyana Polovenko, andChaya D. Wald appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Steinhardt, J.), dated October 6, 2011, as denied theirmotion pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as assertedagainst them on the ground of lack of personal jurisdiction.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the appellants' motion which was pursuant to CPLR 3211 (a) (8)to dismiss the complaint insofar as asserted against the defendant NES Medical Servicesof New York, P.C., on the ground of lack of personal jurisdiction; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Kings County, for a hearing on, and a newdetermination of, that branch of the appellants' motion which was pursuant to CPLR3211 (a) (8) to dismiss the complaint insofar as asserted against the defendant NESMedical Services of New York, P.C., on the ground of lack of personal jurisdiction.
CPLR 311 (a) provides that personal service on a corporation may be accomplishedby, inter alia, delivering the summons "to an officer, director, managing or general agent,or cashier or assistant cashier or to any other agent authorized by appointment or by lawto receive service" (CPLR 311 [a] [1]). A process server's affidavit of service constitutesprima facie evidence of proper service on a corporation pursuant to CPLR 311 (a) (1) (see Indymac Fed. Bank FSB vQuattrochi, 99 AD3d 763, 764 [2012]; C&H Import & Export, Inc. v MNA Global, Inc., 79 AD3d784, 784 [2010]; McIntyrev Emanuel Church of God In Christ, Inc., 37 AD3d 562, 562 [2007])."Although a defendant's sworn denial of receipt of service generally rebuts thepresumption of proper service established by the process server's affidavit andnecessitates an evidentiary hearing, no hearing is required where the defendant fails toswear to specific facts to rebut the statements in the process server affidavits"(Indymac Fed. Bank FSB v Quattrochi, 99 AD3d at 764 [citation and internalquotations omitted]; seeCountrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984-985[2010]; Scarano v Scarano,63 AD3d 716, 716 [2009]).[*2]
Here, the affidavit of service of the plaintiff'sprocess server describing service of process on the defendant NES Medical Services ofNew York, P.C. (hereinafter NES), constituted prima facie evidence of proper service onNES (see Indymac Fed. Bank FSB v Quattrochi, 99 AD3d at 764; C&HImport & Export, Inc. v MNA Global, Inc., 79 AD3d at 784; McIntyre vEmanuel Church of God In Christ, Inc., 37 AD3d at 562). In support of that branchof their motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaintinsofar as asserted against NES on the ground of lack of personal jurisdiction, theappellants submitted an affidavit stating that the person served was neither employed by,nor authorized to accept service for, NES. Where, as here, "there is a sworn denial ofservice by the defendant, the affidavit of service is rebutted and the plaintiff mustestablish jurisdiction by a preponderance of the evidence at a hearing" (SkylineAgency v Coppotelli, Inc., 117 AD2d 135, 139 [1986]; see Indymac Fed. BankFSB v Quattrochi, 99 AD3d at 764; Verille v Kopic, 304 AD2d 823, 823[2003]). Accordingly, the matter must be remitted to the Supreme Court, Kings County,for a hearing on, and a new determination of, that branch of the appellants' motion whichwas pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againstNES on the ground of lack of personal jurisdiction.
The Supreme Court properly denied those branches of the appellants' motion whichwere pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted againstthe defendants Bonnie Simmons, Tatyana Polovenko, and Chaya D. Wald (hereinaftercollectively the individual appellants), on the ground of lack of personal jurisdiction."CPLR 308 (2) permits personal service on a natural person 'by delivering the summonswithin the state to a person of suitable age and discretion at the actual place of business'of the person to be served and, within 20 days thereafter, mailing a copy of the summonsto the actual place of business in a specified manner" (Samuel v Brooklyn Hosp. Ctr.,88 AD3d 979, 980 [2011], quoting CPLR 308 [2]). "A person's 'actual place ofbusiness' must be where the person is physically present with regularity, and that personmust be shown to regularly transact business at that location" (Selmani v City of New York,100 AD3d 861, 861 [2012]; see Katz v Emmett, 226 AD2d 588, 589[1996]). "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"(Samuel v Brooklyn Hosp. Ctr., 88 AD3d at 980; see Kearney vNeurosurgeons of N.Y., 31 AD3d 390, 391 [2006]; McCray v Petrini, 212AD2d 676, 676 [1995]). Under the circumstances of this case, contrary to the appellants'contention, the Supreme Court correctly determined, in effect, that the plaintiff properlydelivered copies of the summons and complaint to the individual appellants at theiractual place of business, i.e., the location where they were physically present withregularity, and where they regularly transacted business (see generally Selmani v Cityof New York, 100 AD3d at 861; Katz v Emmett, 226 AD2d at 589; seealso Colon v Beekman Downtown Hosp., 111 AD2d 841 [1985]). Eng, P.J.,Dickerson, Hall and Lott, JJ., concur.