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Mintz v. Grossman

Appellate Division of the Supreme Court of New York, Second Department
Apr 23, 1990
160 A.D.2d 913 (N.Y. App. Div. 1990)

Opinion

April 23, 1990

Appeal from the Supreme Court, Suffolk County (Gerard, J.).


Ordered that the cross appeal is dismissed (see, Parochial Bus Sys. v. Board of Educ., 60 N.Y.2d 539); and it is further,

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

Ordered that the respondent-appellant is awarded one bill of costs.

We find that the Supreme Court properly dismissed the complaint as asserted against the defendant Fredi Grossman, since the plaintiff never acquired in personam jurisdiction over Grossman. The record reveals that the plaintiff attempted to effect service upon Grossman by serving her husband with a summons alone, which neither contained nor had attached to it a notice stating the nature of the action and the relief sought, after the applicable Statute of Limitations had expired. Moreover, even if the summons had been served in a timely manner, dismissal would have, nevertheless, been warranted since there is no indication that Grossman's husband was authorized to accept service on her behalf as her agent (see, CPLR 318) and since service of a mere summons without a complaint and without a notice of the nature of the action and the relief sought, is in any event, jurisdictionally invalid (see, Parker v. Mack, 61 N.Y.2d 114).

Additionally, we note that the record supports the Supreme Court's conclusion that the plaintiff did not set forth a reasonable excuse for having failed to timely respond to Grossman's demands for a complaint (see, CPLR 3012 [b]; Kel Mgt. Corp. v. Rogers Wells, 64 N.Y.2d 904; De Vito v. Marine Midland Bank, 100 A.D.2d 530; Homburger v. Geschwind, 75 A.D.2d 864). Brown, J.P., Eiber, Sullivan and Harwood, JJ., concur.


Summaries of

Mintz v. Grossman

Appellate Division of the Supreme Court of New York, Second Department
Apr 23, 1990
160 A.D.2d 913 (N.Y. App. Div. 1990)
Case details for

Mintz v. Grossman

Case Details

Full title:SUSAN MINTZ, Appellant-Respondent, v. FREDI GROSSMAN…

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

Date published: Apr 23, 1990

Citations

160 A.D.2d 913 (N.Y. App. Div. 1990)
554 N.Y.S.2d 639

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