Opinion
March 29, 1971
In a negligence action to recover damages for personal injuries, plaintiff appeals (1) from an order of the Supreme Court, Kings County, dated April 24, 1970, which denied her motion to dismiss the affirmative defense contained in the answer of defendants Tisser, Mlynarski and Intrater, and, (2) as limited by her brief, from so much of an order of said court dated the same day as, upon reargument, adhered to the original determination. Order of April 24, 1970 granting reargument modified by adding, immediately after the decretal provision therein that the original "determination is adhered to", the following: "except as to defendant Sam Tisser and, as to said defendant, plaintiff's motion to dismiss the affirmative defense is granted and said defense insofar as it was pleaded by said defendant is dismissed." As so modified, order affirmed insofar as appealed from. Appeal from order of April 24, 1970 which initially denied plaintiff's motion to dismiss the affirmative defense dismissed, as academic. That order was superseded by the order granting reargument ( Alpert v. Alpert, 20 A.D.2d 560). Plaintiff is awarded $10 costs and disbursements against defendant Sam Tisser to cover the appeals from both orders. The respondent defendants interposed an affirmative defense that the court did not have jurisdiction of their persons because proper service of the summons had not been made pursuant to CPLR 308. Plaintiff's motion to dismiss that defense was denied, after a hearing and upon findings by Special Term that the summons had not been delivered personally to defendants Mlynarski and Intrater and that a proper showing of "due diligence" had not been made so as to authorize substituted service upon defendant Tisser pursuant to subdivision 3 of former section 308 N.Y.C.P.L.R. of the CPLR. While we affirm the determination with respect to defendants Mlynarski and Intrater, we are of the opinion that the substituted service upon defendant Tisser, by a Deputy Sheriff of the City of New York, was proper under the particular circumstances of this case ( Baldormar v. Carucci, N.Y.L.J., Nov. 19, 1969, p. 16, col. 7). Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.