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Sparacino v. Winner

Appellate Division of the Supreme Court of New York, First Department
Jun 16, 1981
82 A.D.2d 753 (N.Y. App. Div. 1981)

Opinion

June 16, 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 A.D.2d 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 A.D.2d 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 A.D.2d 798.)

Concur — Kupferman, J.P., Sullivan, Markewich and Bloom, JJ.; Fein, J., concurs only on the ground of lack of jurisdiction.


Summaries of

Sparacino v. Winner

Appellate Division of the Supreme Court of New York, First Department
Jun 16, 1981
82 A.D.2d 753 (N.Y. App. Div. 1981)
Case details for

Sparacino v. Winner

Case Details

Full title:ELVERA SPARACINO, Respondent, v. WILLIAM WINNER, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 16, 1981

Citations

82 A.D.2d 753 (N.Y. App. Div. 1981)

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