Opinion
March 26, 1990
Appeal from the Supreme Court, Suffolk County (Tanenbaum, J.).
Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for an immediate trial pursuant to CPLR 3212 (c) in accordance herewith.
We conclude that the Supreme Court erred in summarily denying the motion by the defendants Long Island Rail Road Company and Metropolitan Transit Authority to dismiss the complaint insofar as it is asserted against them on the basis that the summons was untimely served pursuant to Public Authorities Law § 1276. The appellants' motion papers, coupled with the respondent's admission that the original affidavits of service were in error, were sufficient to raise an issue of fact as to the actual date of service of the summons. In view thereof, that branch of the Supreme Court's order which summarily denied the appellants' motion is reversed and the matter is remitted for a hearing on this issue. Brown, J.P., Eiber, Harwood and Rosenblatt, JJ., concur.