| Thacker v Malloy |
| 2017 NY Slip Op 01727 [148 AD3d 857] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Gail Thacker, Appellant, v Thomas Malloy,Respondent. |
Constantine Cannon LLP, New York, NY (Gary J. Malone and Rosa M. Morales of counsel),for appellant.
Michael A. Mauro, Long Island City, NY, for respondent.
In an action, inter alia, to recover damages for wrongful eviction, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Kings County (F. Rivera,J.), dated August 11, 2015, as, after a hearing to determine the validity of service of process, ineffect, granted that branch of the defendant's cross motion which was pursuant to CPLR 3211 (a)(8) to dismiss the complaint for lack of personal jurisdiction.
Ordered that the order is affirmed insofar as appealed from, with costs.
"The plaintiff bears the ultimate burden of proving by a preponderance of the evidence thatjurisdiction over the defendant was obtained by proper service of process" (Bankers Trust Co.of Cal. v Tsoukas, 303 AD2d 343, 343 [2003]; see HSBC Bank USA, N.A. v Hamilton, 116 AD3d 663, 664[2014]). "In reviewing a determination made after a hearing, this Court's authority is as broad asthat of the hearing court, and this Court may render the determination it finds warranted by thefacts, taking into account that in a close case, the hearing court had the advantage of seeing thewitnesses" (Deutsche Bank Natl. TrustCo. v Gordon, 129 AD3d 769, 769 [2015]; see Northern Westchester ProfessionalPark Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; HSBC Bank USA, N.A. vHamilton, 116 AD3d at 663).
Here, at a hearing to determine the validity of service of process, the plaintiff failed to meether burden of proving by a preponderance of the evidence that jurisdiction over the defendantwas obtained by proper service of process. Evidence showed that the process server walked up tothe window of the defendant's mother's ground-floor apartment to give her the summons andcomplaint as he stood on the sidewalk and she stood inside her apartment. Although thedefendant resided in the same multiple-dwelling building as his mother, his apartment was on ahigher floor, and it was separate and distinct from his mother's apartment. Hence, in serving thedefendant's mother with the summons and complaint while she was inside her own apartment,service was not made at the defendant's actual dwelling place (see CPLR 308 [2];Dinicu v Groff Studios Corp., 215 AD2d 323 [1995]; Biological Concepts vRudel, 159 AD2d 32 [1990]; cf. F.I. duPont, Glore Forgan & Co. v Chen, 41NY2d 794 [1977]; Roldan v Thorpe, 117 AD2d 790 [1986]). Accordingly, the SupremeCourt properly, in effect, granted that branch of the defendant's cross motion which was pursuantto CPLR 3211 (a) (8) to dismiss the complaint for lack of personal jurisdiction.
[*2] The defendant's remaining contentions either are notproperly before this Court or without merit. Eng, P.J., Balkin, Hall and Barros, JJ., concur.