78 A.D.2d 915 | N.Y. App. Div. | 1980
Appeals from that portion of an order of the Supreme Court at Special Term, entered March 8, 1979 in Chemung County, which denied the motion of Aero Trucking, Inc., to dismiss for lack of jurisdiction, and from an order of the same court, entered April 16,1979 in Chemung County, which denied the motion for reargument. Five separate actions for the wrongful deaths of five members of the George E. Killian family were commenced by the service of summonses upon the defendant Osborne’s wife and upon the defendant Aero Trucking, Inc. (Aero), through James Micelli at Aero’s headquarters in Monroesville, Pennsylvania. The defendants moved_t.o dismiss the actions pursuant to CPLR 3211 (subd [a], par 8) for want of jurisdiction. The plaintiffs did not resist the motion with respect to the defendant Osborne, but strenuously opposed Aero’s motion. According to the plaintiffs, its process server, a Deputy Sheriff of Allegany County, went to Aero headquarters in Monroesville and made known to a receptionist or secretary that he would like to be taken to the person in charge and upon whom service of process could be effected. He was advised that the manager was not present, but that a James Micelli was in charge during the manager’s absence. At the deputy’s asking, he was directed to Micelli and, after apprising Micelli of his mission, the deputy served the summonses upon him. Micelli accepted the summonses and gave no indication that he was not authorized to do so. Aero, in support of its motion to dismiss, offered an affidavit of Micelli wherein he asserted that there was no receptionist on duty when the deputy came to his office to serve him and that he, Micelli, was not a person authorized to receive service of a summons in behalf of the corporation. Aero contends that since Micelli was not an officer, director, managing or general agent or cashier or assistant cashier (CPLR 311) nor authorized or appointed to receive process according to CPLR 318, the service upon him did not constitute valid service. For some time a conflict has existed between authorities on the one hand who hold that CPLR 311 is to be strictly applied in cases involving redelivery of summonses when service of process is made on a corporation (Jacobs v Zurich Ins. Co., 53 AD2d 524, app dsmd 40 NY2d 844; Isafy Pennsylvania R. R.Co., 32 AD2d 578) and those which take a more liberal view (Sullivan Realty Organization v Syart Trading Corp., 68 AD2d 756; Matter of Shedlin v State Tax Comm., 62 AD2d 806; Green v
Of some significance is the fact that Micelli does not claim to have advised the deputy that he was without authority to accept process. Moreover, Micelli, concededly, promptly turned the summonses over to someone authorized to receive them.