Opinion
March 15, 1982
In an action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Kings County (Leone, J.), dated March 9, 1981, which, after a hearing, granted defendant's motion to dismiss the complaint for lack of personal jurisdiction. Order reversed, on the law, without costs or disbursements, and matter remitted to Special Term for the making of a new determination in accordance herewith on the present record. Special Term apparently was under the impression that plaintiffs attempted service by leaving a copy of the summons with a neighbor of the defendant. According to the amended affidavit of service, however, it is clear that plaintiffs are alleging substituted service pursuant to CPLR 308 (subd 4). The fact that the original affidavit of service was improperly executed is not a jurisdictional defect, if in fact service was properly made (see Mrwik v. Mrwik, 49 A.D.2d 750). The court must determine whether the efforts of the process server constituted due diligence under CPLR 308 (subds 1, 2) and, if so, whether service was properly effected under subdivision 4 (cf. Stylianou v. Tsourides, 73 A.D.2d 642). Having seen and heard the witnesses at the hearing, Special Term is in the best position to answer these questions (see Mrwik v. Mrwik, supra; cf. Barnes v City of New York, 51 N.Y.2d 906). Damiani, J.P., Gibbons, Niehoff and Boyers, JJ., concur.