Opinion
October 14, 1986
Appeal from the Supreme Court, Kings County (Shaw, J., Pino, J.).
Justice Bracken has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2 [c]).
Ordered that the appeal from the order dated September 20, 1983 is dismissed, without costs or disbursements (see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501 [a] [1]), and it is further
Ordered that the judgment is reversed, on the law, without costs or disbursements, the orders dated July 28, 1983, and September 20, 1983, are vacated, and the complaint insofar as it is asserted against the appellants is dismissed.
We find that the plaintiff failed to establish that service on the defendant Sabri pursuant to CPLR 308 (1), (2) and (4) was "impracticable" so as to permit service under CPLR 308 (5) (see, Markoff v South Nassau Community Hosp., 91 A.D.2d 1064, affd 61 N.Y.2d 283). The court, therefore, never obtained personal jurisdiction over Sabri, and the resulting orders and judgment against him were nullities (see, Brent-Grand v Megavolt Corp., 97 A.D.2d 783, 784; Mayers v Cadman Towers, 89 A.D.2d 844, 845).
The defendant hospital, moreover, may not be cast in damages upon the theory that it was vicariously liable for the acts of Sabri where the latter's liability was erroneously predicated on his default. We, therefore, dismiss the complaint as against both Sabri and the hospital. Thompson, J.P., Bracken, Eiber and Spatt, JJ., concur.