Opinion
June 24, 1996
Appeal from the Supreme Court, Queens County (Satterfield, J.).
Ordered that the order dated June 5, 1995, is reversed, on the facts, and the matter is remitted to the Supreme Court, Nassau County, for a de novo determination of the plaintiff's motion pursuant to CPLR 308 (5), after a hearing in accordance herewith; and it is further,
Ordered that the order dated June 8, 1995, is modified by deleting the second paragraph thereof and by adding to the first paragraph thereof, after the words "is denied" the following, "without prejudice to renewal upon determination of the plaintiff's motion pursuant to CPLR 308 (5)"; as so modified the order is affirmed; and it is further,
Ordered that the appellant is awarded one bill of costs.
The plaintiff Fausto Munoz was injured while removing asbestos for his employer, Detail, on property owned by New York Telephone, the defendant third-party plaintiff. Fausto Munoz and Cecilia Munoz, his wife, commenced a negligence action against New York Telephone. New York Telephone then commenced this third-party action for indemnification against the appellant Gregory Studencki d/b/a Detail.
After failing to effectuate service upon Gregory Studencki, a resident of Poland, New York Telephone moved pursuant to CPLR 308 (5) to allow expedient service upon the State Insurance Fund, which had issued a workers' compensation insurance policy to the appellant d/b/a Detail. The appellant opposed the motion contending that he was never a principal of Detail, never conducted business under the name of Detail, and never applied for a workers' compensation insurance policy on behalf of Detail. The appellant further contended that his name was forged on the insurance application.
Upon these facts, we are unable to determine whether the appellant transacted business in New York within the meaning of CPLR 302 (a) or whether personal jurisdiction can be obtained by service upon the State Insurance Fund ( see, Giannizzero v Herzel, 170 A.D.2d 647). Accordingly, the matter is remitted to determine whether there is a jurisdictional basis under CPLR 302 upon which an action may be commenced against the appellant in New York and whether service may then be made upon the State Insurance Fund ( see, Universal City Studios v. P.E.A. Films, 63 A.D.2d 438). Mangano, P.J., Rosenblatt, Ritter and Copertino, JJ., concur.