Opinion
September 23, 1964
Heiko Bush ( Ronald I. Levy of counsel), for plaintiff.
Ralph J. Schwarz, Jr., for defendant appearing specially.
Paragraph (1) of subdivision (a) of section 902 of the New York City Civil Court Act provides that an indorsed complaint may be served only when the summons is served by personal delivery to the defendant in New York City and the cause of action is for money only. Service according to CPLR 308 (subd. 3) does not constitute personal delivery to the defendant. Therefore a formal complaint is required. However, the service of an indorsed complaint herein is not a jurisdictional defect but merely an amendable irregularity (see Professor Siegel's commentary, McKinney's Cons. Laws of N.Y., Book 29A, CCA, § 902, 1964 Supp., p. 21).
Babylon Milk Cream Co. v. Rosenbush ( 227 F. Supp. 471) is not binding on this court and will not be followed.
Paskus, Gordon Hyman v. Peck ( 41 Misc.2d 1004) is consistent with this decision since in that case, plaintiff served a summons without any complaint.
Accordingly, the motion to dismiss the complaint is granted with leave to the plaintiff to move to serve a formal complaint.