| Teitelbaum v North Shore-Long Is. Jewish Health Sys., Inc. |
| 2018 NY Slip Op 02824 [160 AD3d 1009] |
| April 25, 2018 |
| Appellate Division, Second Department |
[*1]
| Jan Michael Teitelbaum, Appellant, v NorthShore-Long Island Jewish Health System, Inc., Respondent. |
Goldstein & Goldstein, P.C., Brooklyn, NY (Mark I. Goldstein and Cindy A.Moonsammy of counsel), for appellant.
James W. Tuffin, Islandia, NY, for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals froma judgment of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered February11, 2016. The judgment, upon an order of the same court entered December 1, 2015, made after ahearing, denying the plaintiff's motion pursuant to CPLR 3215 (a) for leave to enter judgment onthe issue of liability against the defendant upon its failure to appear or answer and granted thedefendant's cross motion, in effect, pursuant to CPLR 3211 (a) (8) to dismiss the complaint onthe ground of lack of personal jurisdiction, is in favor of the defendant and against the plaintiffdismissing the complaint.
Ordered that on the Court's own motion, the notice of appeal from the order is deemed to bea premature notice of appeal from the judgment (see CPLR 5520 [c]); and it isfurther,
Ordered that the judgment is affirmed, with costs.
On May 25, 2012, the plaintiff commenced this action against the defendant to recoverdamages for, inter alia, medical malpractice. In May 2013, the plaintiff moved pursuant to CPLR3215 (a) for leave to enter judgment on the issue of liability against the defendant upon its failureto appear or answer the complaint. The following month, the defendant cross-moved, in effect,pursuant to CPLR 3211 (a) (8) to dismiss the complaint on the ground of lack of personaljurisdiction. On October 10, 2013, the Supreme Court entered an order denying the plaintiff'smotion and granting the defendant's cross motion. On appeal by the plaintiff, this Court foundthat an affidavit submitted by the defendant in opposition to the plaintiff's motion and in supportof its cross motion, from the director of health information management at nonparty Long IslandJewish Medical Center (hereinafter LIJMC), was sufficient to rebut the allegations contained inan affidavit of service of the plaintiff's process server and raise issues of fact as to whether thedefendant was properly served (seeTeitelbaum v North Shore-Long Is. Jewish Health Sys., Inc., 123 AD3d 1006 [2014]).Consequently, the matter was remitted to the Supreme Court, Queens County, for a hearing todetermine whether the defendant was properly served and, thereafter, for a new determination ofthe plaintiff's motion and the defendant's cross motion. Upon remittitur, the Supreme Courtissued an order entered December 1, 2015, which, after a hearing, denied the plaintiff's motionand granted the defendant's cross motion. A judgment dismissing the complaint was entered uponthe order on [*2]February 11, 2016.
When an affidavit of service is rebutted, the plaintiff bears the ultimate burden of proving bya preponderance of the credible evidence that jurisdiction over the defendant was obtained byproper service of process (see Santiago vHoncrat, 79 AD3d 847, 848 [2010]; Roberts v Anka, 45 AD3d 752, 753 [2007]; Bankers Trust Co.of Cal. v Tsoukas, 303 AD2d 343, 343 [2003]). The Supreme Court's credibilitydeterminations following a hearing are entitled to substantial deference on appeal, and should notbe overturned if supported by a fair interpretation of the evidence (see Santiago vHoncrat, 79 AD3d at 848; Freud vSt. Agnes Cathedral School, 64 AD3d 678, 679 [2009]; Staton v Omwukeme,277 AD2d 443 [2000]).
Here, the plaintiff's process server testified that he served the defendant at the healthinformation management department at the address of LIJMC in New Hyde Park (seeCPLR 311 [a] [1]). The process server further testified that he delivered the summons andcomplaint to an individual identified by first name only, who claimed that she was authorized toaccept service for the defendant, and he provided a physical description of that individual in hisaffidavit of service, as well as at the hearing. The defendant offered evidence that no employee ofLIJMC's health information management department was authorized to accept service on behalfof the defendant, neither the director nor the associate director of health information managementknew the person named or described by the process server as the recipient of process, there wasno indication in the business records of LIJMC or of the defendant that a summons andcomplaint in this matter had been received, and the defendant was located at a separate address inGreat Neck, which is also the address designated for service of process. Under thesecircumstances, since the summons was not delivered to the defendant's place of business or toone of its employees, service pursuant to CPLR 311 (a) (1) was invalid (see McDonald vAmes Supply Co., 22 NY2d 111, 116 [1968]; Dewey v Hillcrest Gen. Hosp., 201AD2d 609, 610 [1994]; Hailey v Hyster Co., 190 AD2d 711 [1993]; Glasser v KaswolConstr. Corp., 176 AD2d 858, 859 [1991]; Reed v Trailways Bus Sys., 146 AD2d763, 764 [1989]; cf. Fashion Page v Zurich Ins. Co., 50 NY2d 265 [1980]). Accordingly,the Supreme Court's determination will not be disturbed.
Therefore, the plaintiff's motion for leave to enter a judgment on the issue of liability againstthe defendant was properly denied, and the defendant's cross motion to dismiss the complaint onthe ground of lack of personal jurisdiction was properly granted, and judgment was properlyentered dismissing the complaint. Dillon, J.P., Leventhal, Connolly and Brathwaite Nelson, JJ.,concur.