Schwarz v. Margie

May 12, 2009
Versions:62 A.D.3d 780
878 N.Y.S.2d 459
Stevenson v. Sunnyside

In an action to recover damages for personal injuries, the defendant Thomas Margie appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered March 11, 2008, which directed a hearing to determine the validity of service of process upon him to aid in the disposition of his motion pursuant to CPLR 308 and 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him.

Ordered that on the Court‘s own motion, the notice of appeal is treated as an application for leave to appeal from the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, and the appellant‘s motion pursuant to CPLR 308 and CPLR 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The summons with notice in the instant matter purportedly was served upon the appellant, Thomas Margie, by the “nail and mail” method pursuant to CPLR 308 (4). However, the record demonstrates that the service was deficient because the plaintiff failed “to show the existence of even a factual question as to whether the process server exercised the due diligence necessary to be permitted to serve someone under CPLR 308 (4)” (Leviton v Unger, 56 AD3d 731, 732 [2008]). Accordingly, the Supreme Court should not have directed a hearing to determine the validity of service upon the appellant but should have found the proof of due diligence to be insufficient as a matter of law (id.). Accordingly, the appellant‘s motion pursuant to CPLR 308 and CPLR 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him should have been granted (id.; McSorley v Spear, 50 AD3d 652 [2008]; Estate of Waterman v Jones, 46 AD3d 63, 66-67 [2007]; Earle v Valente, 302 AD2d 353, 353-354 [2003]; Moran v Harting, 212 AD2d 517, 518 [1995]).

The plaintiff‘s remaining contentions are without merit, have been rendered academic in light of our determination, or involve matter that is dehors the record and not properly before this Court (see Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693 [2008]). Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.

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In an action to recover damages for personal injuries, the defendant Thomas Margie appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered March 11, 2008, which directed a hearing to determine the validity of service of process upon him to aid in the disposition of his motion pursuant to CPLR 308 and 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him.

Ordered that on the Court‘s own motion, the notice of appeal is treated as an application for leave to appeal from the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, and the appellant‘s motion pursuant to CPLR 308 and CPLR 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The summons with notice in the instant matter purportedly was served upon the appellant, Thomas Margie, by the “nail and mail” method pursuant to CPLR 308 (4). However, the record demonstrates that the service was deficient because the plaintiff failed “to show the existence of even a factual question as to whether the process server exercised the due diligence necessary to be permitted to serve someone under CPLR 308 (4)” (Leviton v Unger, 56 AD3d 731, 732 [2008]). Accordingly, the Supreme Court should not have directed a hearing to determine the validity of service upon the appellant but should have found the proof of due diligence to be insufficient as a matter of law (id.). Accordingly, the appellant‘s motion pursuant to CPLR 308 and CPLR 3211 (a) (8), in effect, to dismiss the complaint and any and all cross claims insofar as asserted against him should have been granted (id.; McSorley v Spear, 50 AD3d 652 [2008]; Estate of Waterman v Jones, 46 AD3d 63, 66-67 [2007]; Earle v Valente, 302 AD2d 353, 353-354 [2003]; Moran v Harting, 212 AD2d 517, 518 [1995]).

The plaintiff‘s remaining contentions are without merit, have been rendered academic in light of our determination, or involve matter that is dehors the record and not properly before this Court (see Mendoza v Plaza Homes, LLC, 55 AD3d 692, 693 [2008]). Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.

Of interest is the fact that the OCR output includes content from two distinct cases and a fragment from a third. The first case (Sunrise vehicle/McCallum) is incomplete at the beginning of the provided text. The second case (Schwarz v. Margie) is complete. The third case (State of New York v. Infantino) is incomplete at the end. Based on the “Multi-Opinion Documents” instruction, I must convert only the main opinion—the one with a complete caption and body. In this instance, that is Schwarz v. Margie. Moving between pages, I correctly rejoin hyphenated words like “purportedly.” I ensure that the `midpage-ps` marker is placed logically. For “id.” references, I infer the case name, citation, and court from the preceding `midpage-case` tag as required. All statute references use the `midpage-law` tag with the correct jurisdiction and citation normalization. I have extracted the case caption details into the `details` block as instructed. I have not repeated the metadata in the body. No code fences or commentary are present in the output. Final check: verify pagination, citations, and semantic HTML structure. everything appears correct. Proceeding to final output generation. One small detail: the phrase “id.” after “(Leviton v Unger, 56 AD3d 731, 732 [2008])” in the source refers to the Leviton case. I will tag it appropriately. Same for the string of citations that follow. The OCR for Schwarz v. Margie starts at the marker for 878 NYS2d 459 on page 780 and ends with the concurrence list on page 781. I will use the reporter page numbers “780” and “781” for the `` tags. I‘ll omit the partial cases at the start of page 780 and the end of page 781. The Schwarz case name is fully provided. The docket number is not clearly visible in the caption provided (it might be in a part of the document not shown), but usually in these reports the citation acts as the identifier. I will stick to what is present in the text and image. The date is March 11, 2008. The court is the Supreme Court, Appellate Division, Second Department (implied by the NY reporter style and the judge names like Spolzino and Miller). I will use N.Y. App. Div. as the court abbreviation. Wait, the metadata block should use Bluebook abbreviations. N.Y. App. Div. is correct. The `shortName` will be “Schwarz v. Margie“. Proceeding.