Kihl v. Pfeffer

Full title: MERRYL KIHL, Appellant, v. KARL O. PFEFFER et al., Defendants, and HONDA…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 28, 1998

256 A.D.2d 555 (N.Y. App. Div. 1998)

682 N.Y.S.2d 462

Opinion

December 28, 1998

Appeal from the Supreme Court, Nassau County (Winick, J.).

Ordered that the appeals from the orders are dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The appeal from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the orders are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501 [a] [1]).

A properly-executed affidavit of service raises a presumption that a proper mailing occurred ( see, Engel v. Lichterman, 62 N.Y.2d 943; St. Clare's Hosp. v. Allcity Ins. Co., 201 A.D.2d 718, 719). The mere denial by the plaintiff's attorney of receipt of the conditional order of preclusion served upon him by the attorney for the defendant Honda Motor Co., Inc., does not suffice to overcome the presumption of delivery and trigger the need for a hearing ( see, Engel v. Lichterman, supra; Facey v. Heyward, 244 A.D.2d 452; St. Clare's Hosp. v. Allcity Ins. Co., supra). Accordingly, the Supreme Court properly denied vacatur of the plaintiff's default in timely serving interrogatories and granted the motion of Honda Motor Co., Inc., to strike the complaint insofar as asserted against it.

Thompson, McGinity and Luciano, JJ., concur.

Miller, J. P., concurs in part and dissents in part and votes to dismiss the appeals from the orders pursuant to Matter of Aho (39 N.Y.2d 241, 248), to reverse the judgment appealed from, to thereupon vacate the orders, and to remit the matter to the Supreme Court, Nassau County, for further proceedings,Page 556 with the following memorandum in which Pizzuto, J. concurs:

Ordinarily, as the majority correctly notes, a properly-executed affidavit of service raises a presumption that proper mailing occurred ( see, Engel v. Lichterman, 62 N.Y.2d 943; St. Clare's Hosp. v. Allcity Ins. Co., 201 A.D.2d 718, 719). However, in the present case, the affidavits submitted on behalf of the plaintiff were sufficient to overcome that presumption and create a question of fact, the resolution of which requires a hearing ( see, Vita v. Heller, 97 A.D.2d 464; Sport-O-Rama Health Fitness Ctr. v. Centennial Leasing Corp., 100 A.D.2d 584).