Opinion
September 4, 1984
Appeal from the Supreme Court, Suffolk County (Canudo, R.).
Order reversed insofar as appealed from, on. the law, with costs, and the motion of defendants Pine Hollow Building Corp. and Metrohouse Constructors, Inc., to dismiss the action as against them on the basis of lack of personal jurisdiction granted.
Plaintiff, Lakeside Concrete Corp., commenced the instant action against the corporate defendants Pine Hollow Building Corp. and Metrohouse Constructors, Inc., and the individual defendants Saul Muchnick and Dorothy Muchnick, officers of the defendant corporations, seeking, inter alia, to impress a trust pursuant to article 3-A of the Lien Law.
Subsequent to the service of the summons and complaint, the corporate defendants moved to dismiss the action as against them on the basis, inter alia, of lack of personal jurisdiction. After a hearing, the court denied the corporate defendants' motion, finding that personal jurisdiction had been acquired over them by service upon defendant Saul Muchnick, an officer of both defendant corporations, through personal delivery of a copy of the summons and complaint to a person of suitable age and discretion at Mr. Muchnick's actual place of business and by mailing the summons and complaint to his last known residence.
On appeal, the defendant corporations contend that the manner of service upon Mr. Muchnick was insufficient to give the court personal jurisdiction over them. We agree.
It is undisputed that service upon Mr. Muchnick was made pursuant to CPLR 308 (subd. 2), which method is only applicable to service upon a natural person. In order to acquire personal jurisdiction over a domestic corporation by personal service, service must be effectuated pursuant to CPLR 311 (subd. 1). That subdivision provides that personal service upon a domestic corporation shall be made by delivering process to any one of several listed corporate representatives (see McDonald v Ames Supply Co., 22 N.Y.2d 111, 114-115; Faravelli v Bankers Trust Co., 85 A.D.2d 335, 339-340, aff'd 59 N.Y.2d 615; Burnside v Suburban Syracuse Airport, 62 A.D.2d 1135). Since the process in the instant case was not personally delivered to Mr. Muchnick, a corporate officer, nor any other authorized person, service was not effectively made upon the defendant corporations. In this regard, we note that the record does not indicate any circumstances which would excuse plaintiff's failure to personally deliver the summons and complaint to a person designated in CPLR 311 (see McDonald v Ames Supply Co., supra, pp. 115-116, and the cases cited therein).
Moreover, the instant case is clearly distinguishable from Port Chester Elec. Co. v Ronbed Corp. ( 28 A.D.2d 1008), Lac Leasing Corp. v Dutchess Aero, Inc. ( 32 A.D.2d 949), and Wellington Assoc. v Vandee Enterprises Corp. ( 75 Misc.2d 330). In those cases, the courts held that service of a single copy of a summons and complaint upon a defendant corporate officer was effective service upon the defendant corporation, as well as upon the defendant corporate officer. However, the records indicate that the manner of service on the defendant corporate officers was by personal delivery of the process upon such individuals, in apparent compliance with CPLR 311, and not by service pursuant to CPLR 308 (subd. 2), as in the instant case. Accordingly, the branch of defendant corporations' motion which sought to dismiss the instant action as against them on the basis of lack of personal jurisdiction should have been granted. O'Connor, J.P., Brown, Boyers and Eiber, JJ., concur.