| Teitelbaum v North Shore-Long Is. Jewish Health Sys.,Inc. |
| 2014 NY Slip Op 08980 [123 AD3d 1006] |
| December 24, 2014 |
| Appellate Division, Second Department |
[*1]
| Jan Michael Teitelbaum, Appellant, v NorthShore-Long Island Jewish Health System, Inc., Respondent. |
Goldstein & Goldstein, P.C., Brooklyn, N.Y. (Mark I. Goldstein and Cindy A.Moonsammy), for appellant.
Santangelo, Benvenuto & Slattery (James W. Tuffin, Islandia, N.Y. of counsel),for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), enteredOctober 10, 2013, which denied his motion pursuant to CPLR 3215 (a) for leave to enterjudgment on the issue of liability against the defendant upon its failure to appear oranswer, and granted the defendant's cross motion, in effect, pursuant to CPLR 3211 (a)(8) to dismiss the complaint on the ground of lack of personal jurisdiction.
Ordered that the order is reversed, on the law, with costs, and the matter is remittedto the Supreme Court, Queens County, for a hearing on, and a new determination of, theplaintiff's motion pursuant to CPLR 3215 (a) for leave to enter judgment on the issue ofliability against the defendant and the defendant's cross motion, in effect, pursuant toCPLR 3211 (a) (8) to dismiss the complaint on the ground of lack of personaljurisdiction.
In support of his motion for leave to enter a default judgment against the defendant,the plaintiff submitted, inter alia, his process server's affidavit of service, which statedthat the defendant was served by personally delivering a copy of the summons andcomplaint to a "Mrs. Susan, Manager" at the defendant's purported address, and provideda description of that person. The process server's affidavit of service constituted primafacie evidence of proper service pursuant to CPLR 311 (a) (1) (see Rosario v NES Med. Servs. ofN.Y., P.C., 105 AD3d 831, 832 [2013]; Indymac Fed. Bank FSB v Quattrochi, 99 AD3d 763, 764[2012]; McIntyre v EmanuelChurch of God In Christ, Inc., 37 AD3d 562, 562 [2007]). In opposition to theplaintiff's motion and in support of its cross motion to dismiss the complaint on theground of lack of personal jurisdiction, the defendant submitted an affidavit from thedirector of health information management at Long Island Jewish Medical Center(hereinafter LIJMC), attesting to the fact that the address where process was deliveredwas the address of LIJMC and not of the defendant, that no employee of the healthinformation management department was authorized to accept service on behalf of thedefendant, and that the director did not know the person described in the affidavit ofservice as the recipient of process. The affidavit submitted by the defendant wassufficient to rebut the allegations contained in the affidavit of service and raise issues offact as to whether the defendant was properly served (see Rosario v NES Med. Servs.of N.Y., P.C., 105 AD3d at 832; Miterko v Peaslee, 80 AD3d 736 [2011]; McIntyre v Emanuel Church ofGod In Christ, Inc., 37 AD3d 562 [2007]). Accordingly, we remit the matter tothe Supreme Court, Queens County, for a hearing to determine whether the defendantwas properly served and, thereafter, for a new determination of the plaintiff's motion andthe defendant's cross motion.
The plaintiff's remaining contention is without merit. Mastro, J.P., Chambers, Cohenand Barros, JJ., concur.
Motion by the appellant, on an appeal from an order of the Supreme Court, QueensCounty, entered October 10, 2013, to strike stated portions of the respondent's brief onthe ground that they improperly raise issues for the first time on appeal and refer tomatter dehors the record. By decision and order on motion of this Court dated July 24,2014, the motion was held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon submission of the appeal, it is
Ordered that the motion is granted, and the full paragraph which begins and ends onpage 2 of the respondent's brief is deemed stricken and has not been considered in thedetermination of the appeal. Mastro, J.P., Chambers, Cohen and Barros, JJ., concur.