Opinion
February 22, 1994
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the order is reversed, on the law, with costs, the appellant's motion is granted, the complaint is dismissed insofar as it is asserted against it, and the action against the remaining defendants is severed.
In 1989, plaintiff commenced this action against, inter alia, the defendant Hillcrest General Hospital, alleging various acts of malpractice in connection with the birth of his son in October 1979. The appellant answered, asserting the defense of lack of in personam jurisdiction. The appellant moved to dismiss the complaint in July 1990, inter alia, on the ground that service upon it was invalid under CPLR 311 (1). We find that the court erred in denying the motion.
When an affidavit of service is rebutted, the plaintiff has the burden of establishing by a preponderance of the evidence that service was valid (see, Frankel v. Schilling, 149 A.D.2d 657). The appellant offered evidence that it sold the hospital building and property in 1980, that thereafter maintained an office in Manhattan, that the hospital was subsequently operated by Osteopathic Hospital and Clinic of New York Inc. (hereinafter Osteopathic), and that Osteopathic later sold the property to the Catholic Medical Center of Brooklyn and Queens, Inc. (hereinafter the Catholic Medical Center). At the time process was served, the hospital was operated by the Catholic Medical Center and had been renamed St. Joseph's Hospital. The process server delivered the summons at the hospital to an executive secretary, who agreed to accept service on behalf of "Hillcrest General Hospital". However, she was an employee of St. Joseph's Hospital, and she had never been authorized by the appellant to accept service on its behalf. Under the circumstances, since the summons was not delivered to the appellant's place of business nor to one of its employees, service pursuant to CPLR 311 (1) was invalid (see, e.g., McDonald v. Ames Supply Co., 22 N.Y.2d 111; Glasser v. Kaswol Constr. Corp., 176 A.D.2d 858; Reed v. Trailways Bus Sys., 146 A.D.2d 763; cf., Fashion Page v. Zurich Ins. Co., 50 N.Y.2d 265).
"Hillcrest General Hospital" was not the entity to be served, but was merely a trade name under which the appellant operated. The fact that the secretary indicated to the process server that she was authorized to accept service for "Hillcrest General Hospital" does not estop the appellant from contesting service, since the secretary was not acting on behalf of the appellant. Moreover, the correspondence to the plaintiff's attorney in 1986 regarding the infant plaintiff's medical records was from Osteopathic, not the appellant.
Since service was invalid, it is irrelevant that the documents were actually received by the appellant (see, Raschel v. Rish, 69 N.Y.2d 694; Continental Hosts v. Levine, 170 A.D.2d 430). Bracken, J.P., Miller, O'Brien and Altman, JJ., concur.