Opinion
May 26, 1978
Appeal from the Steuben Supreme Court.
Present — Cardamone, J.P., Simons, Dillon, Hancock, Jr., and Denman, JJ.
Order unanimously reversed, with costs, and motion to vacate summons granted. Memorandum: Plaintiff instituted an action against Corning Community College by service of a summons on Donald Hangen, president of the college. Defendant moved to vacate on the ground, inter alia, that service on the president did not confer jurisdiction over the college. We held that the record was inadequate to support a determination that the duties delegated to the president by the board of trustees would make him a proper party for service under CPLR 312, and remitted the matter to Special Term for a hearing to determine his duties ( 61 A.D.2d 883). Plaintiff failed to appear for a hearing, notifying the court by letter that he would rely on the record and that he believes the burden to be on defendant to establish the duties of Mr. Hangen. "The burden of proving jurisdiction is upon the party asserting it and when challenged on jurisdiction, such party must sustain that burden by preponderating proof (Saratoga Harness Racing Assn. v Moss, 26 A.D.2d 486, 490, affd 20 N.Y.2d 733)." (Jacobs v Zurich Ins. Co., 53 A.D.2d 524, 525, app dsmd 40 N.Y.2d 844. ) Plaintiff has failed to sustain his burden of proof and since he did not avail himself of an opportunity to enlarge the record, defendant's motion to vacate the summons is granted.