82 A.D.2d 753 | N.Y. App. Div. | 1981
Order, Supreme Court, New York County (Blangiardo, J.), entered August 28,1980, which order denied the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5), Statute of Limitations, and CPLR 3211 (subd [a], par 8), no jurisdiction of the person, reversed on the law, and the motion to dismiss the complaint granted, without costs. This is a malpractice case, which the plaintiff attempted to commence in May, 1980 by service of a summons on the nurse employed by the defendant physician at his office. The court at Special Term sustained the service on the ground that it was accomplished by substitution. However, the copy that was mailed was sent to the doctor’s office rather than to his home, which is insufficient. (Rich v Lefkovits, 81 AD2d 1049.) It may be that it could be considered personal service if the nurse was authorized to accept it (see Conforti v Beekman Downtown Hosp., 79 AD2d 968) but we need not reach that question. Nonetheless, the complaint should be dismissed under CPLR 3211 (subd [a], par 5). The action was commenced in May of 1980. The physician’s affidavit stated that he treated the plaintiff from October, 1976 until March, 1977, and that he has not seen her nor communicated with her since then. There is no contradiction of his statement, merely the contention that the question is raised prematurely. If the statute is to be avoided, there should be some factual demonstration in the answering papers. (See Norton & Co. v Roslyn Targ Literary Agency, 81 AD2d 798.) Concur — Kupferman, J. P., Sullivan, Markewich and Bloom, JJ.; Fein, J., concurs only on the ground of lack of jurisdiction.
