Opinion
October 15, 1985
Appeal from the Supreme Court, Kings County (Lodato, J.).
Order affirmed, with costs.
On this appeal, plaintiffs contend, inter alia, that Special Term improperly denied their discovery motion on jurisdictional grounds since service of process, admittedly upon the law office of Martin, Van de Walle, Guarino Donohue, was sufficient to confer jurisdiction over the corporate defendant. We do not agree.
It is, of course, true that service of process upon attorneys for a corporation may, by express agreement or by appointment of the latter as agent to receive process on its behalf, constitute valid service upon the corporation (see, CPLR 311; Fashion Page v Zurich Ins. Co., 50 N.Y.2d 265, 271-272). Nonetheless, the burden of proving jurisdiction is upon the party asserting it (see, Saratoga Harness Racing Assn. v Moss, 26 A.D.2d 486, affd 20 N.Y.2d 733; Brooklyn Union Gas Co. v Arrao, 100 A.D.2d 949), and here plaintiffs failed to establish by sufficient probative evidence that Martin, Van de Walle, Guarino Donohue represented the defendant in the instant lawsuit or that it had been appointed as defendant's authorized agent for the purpose of receiving process. Under these circumstances, any purported service as to defendant was ineffective, and Special Term properly denied the motion on the grounds that jurisdiction had not been obtained over defendant and no action was pending (see, Pinto v House, 79 A.D.2d 361, 364; State of New York v Cortelle Corp., 73 Misc.2d 352, 354, affd 43 A.D.2d 668, mod on other grounds 38 N.Y.2d 83). O'Connor, J.P., Rubin, Eiber and Kunzeman, JJ., concur.