53 A.D.2d 524 | N.Y. App. Div. | 1976
Order, Supreme Court, New York County, entered December 11, 1975, which confirmed the report of the Special Referee and granted the defendant’s motion to dismiss the complaint for lack of jurisdiction, affirmed. Respondent shall recover of appellant $60 costs and disbursements of this appeal. Defendant moved for an order pursuant to CPLR 3211 (subd [a], par 8) dismissing the complaint on the ground that the court does not have jurisdiction of the person of the defendant. The motion was held in abeyance and the factual issue of whether proper service was effected upon defendant was referred to a Special Referee to hear and report. Defense counsel’s endeavor to obtain an adjournment of the hearing before the Special Referee scheduled for May 2, 1975 because of actual engagement elsewhere, opposed by plaintiff’s counsel, was unsuccessful. As a consequence, defense counsel rearranged his affairs so as to be able to proceed at said hearing. The sole proof submitted by plaintiff at the hearing was the affirmation of the process server, an attorney, dated August 27, 1974, wherein he averred that he served the summons on the corporate defendant by personally serving same on a Mr. Forward, that he "intentionally and purposefully asked Mr. Forward if he was authorized to accept service of a summons” and upon receiving an affirmative response, he then served the summons on Mr. Forward. Since the process server did not testify at the hearing, his affidavit of service is admissible in evidence only insofar as it conforms to the requirements of CPLR 306, which pertinently provides, inter alia, that proof of service in the form of an affidavit "shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner.” A receptionist employed by defendant testified that Mr. Forward, who is no longer an employee of defendant, was the claims manager for defendant and that for the purpose of receiving summonses, process servers were directed to other people. The receptionist further declared that if no one was available, process servers, according to her belief, were sent to Mr. Forward. However, on redirect, she stated that she had no knowledge as to this practice. No witnesses were produced by plaintiff. As aptly noted in Commissioners of State Ins. Fund v Singer Sewing Mach. Co., 281 App Div 867, 868: "The fact that the corporation ultimately received the summons did not * * * validate the service thereof. (Josephy v. Kansas City, M. & O. Ry., 180 App. Div. 313, 315; Beck v. North Packing & Provision Co., 159 App. Div. 418, 420). It is equally well settled that the validity of service by plaintiff cannot be made to turn upon any statement made by the person who actually received the summons, at the time he was served. (Coler v. Pittsburgh Bridge Co., 146 N. Y. 281, 283; Loeb v. Star & Herald Co., 187 App. Div. 175, 178.)” The court did not obtain jurisdiction of the defendant by the service of process upon Forward unless he was within the meaning of CPLR 311 (subd 1) "an officer, director, managing or general agent, or cashier or assistant cashier or * * * any other agent authorized by appointment or by. law to receive service”. "The