Opinion
Decided February 13, 1997
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered May 30, 1996, which (1) reversed, on the law and the facts, an order of the Supreme Court (Luis Gonzalez, J.), entered in Bronx County, granting a motion by defendant Montefiore Medical Center to reject the findings of a Judicial Hearing Officer which recommended that plaintiff's service of process be upheld, and to dismiss plaintiff's complaint for lack of personal jurisdiction, and (2) denied the motion. The following question was certified by the Appellate Division: "Was the decision and order of this Court, which reversed the order of the Supreme Court, properly made?"
In an action for medical malpractice, plaintiff attempted to serve process on defendant hospital on the last day allowed by the Statute of Limitations.
The Appellate Division stated that the record supports the Judicial Hearing Officer's factual findings that plaintiff's counsel spoke with a representative of defendant, and pursuant to that individual's instructions, appeared at defendant's office of Risk Management during business hours in order to effect service of the summons and complaint; that notwithstanding notification from plaintiff's counsel that he was en route, the office door was locked early and nobody responded upon counsel's arrival during business hours; that an employee in an adjacent office voluntarily suggested that plaintiff's counsel try the Risk Management office at another address; that defendant's employee called to inform them that plaintiff's counsel would be over to serve process momentarily; that plaintiff found this office closed as well when he arrived there a few moments later; and that having been twice thwarted at his attempt to make service by employees of defendant, plaintiff's counsel proceeded to defendant's office of the Comptroller — Finance, General Accounting and Special Funds and served the person in charge of the office. The Court concluded that the Judicial Hearing Officer's finding, that defendant's employees contributed to the creation of plaintiff's service conundrum by twice directing him to offices that then closed upon notification of the impending arrival of plaintiff's counsel which constituted evasion of service, was supported by the record; that service was finally made upon a person who reports directly to the Comptroller, who supervises others, and who, in so doing, exercises considerable judgment and discretion upon behalf of defendant, given that her department accounts for over $400,000,000 in receipts and disbursements; that the Judicial Hearing Officer properly determined that plaintiff's counsel acted reasonably, and with due diligence to fulfill the mandate of CPLR 311 (1); and that, objectively viewed, the defendant received fair notice.
Bartlett, McDonough, Bastone Monaghan, L.L.P., White Plains (Edward J. Guardaro, Jr.), for appellant.
John E. Lawler, Yonkers, for respondent.
Scheib v Curran, 227 A.D.2d 328, affirmed.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Divisions conclusions that the corporation evaded service and that plaintiff's counsel's attempts to serve process were reasonable and diligent find support in the record.
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.