Summary
In Frankel, the process server left a summons and complaint on the floor in the reception area common to several businesses, where the party to be served was not in and the only individuals present had no connection or relationship to the intended party.
Summary of this case from Charnin v. CoganOpinion
February 25, 1992
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
The question of jurisdiction turns first on the credibility of plaintiffs' process server's testimony that he delivered the summons to the person described in his affidavit of service, and second, whether such person is the managing agent of the corporate defendant and a person of suitable age and discretion at the individual defendant's actual place of business. At the hearing, plaintiffs' process server's testimony was contradicted by a disinterested witness, who testified that only she and her husband were present when the process server arrived at the office suite occupied by various tenants, that her husband informed the process server that the defendants were not present and that they were not authorized to accept process, and that a short while after the process server left the suite with the documents, when she and her husband exited the office to lock up for the night, she noticed the papers had been left on the floor in front of the door. The Referee having credited the testimony of the disinterested witness, and his findings being supported by the record, his report was properly confirmed (Plaza Funding Corp. v. J.C. Dev. Corp., 155 A.D.2d 298).
Concur — Murphy, P.J., Wallach, Kupferman, Asch and Smith, JJ.